Cases by Issue - Federal Internal Security Legislationhttp://www.oyez.org/taxonomy/term/8377/podcast
U.S. Supreme Court Oral Arguments, presented by The Oyez Project (www.oyez.org)enRegan v. Wald - Oral Argumenthttp://www.oyez.org/cases/1980-1989/1983/1983_83_436/argument
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<a href="/cases/1980-1989/1983/1983_83_436">Regan v. Wald</a> </div>
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<p>ORAL ARGUMENT OF PAUL M. BATOR, ESQ., ON BEHALF OF PETITIONERS</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: We will hear arguments first this morning in Regan against Wald.</p>
<p>Mr. Bator, you may proceed whenever you're ready.</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: Thank you, Mr. Chief Justice, and may it please the Court:</p>
<p>This case raises questions about the President's authority in connection with national emergency economic embargoes, that is, in connection with programs of comprehensive control on financial and property transactions that apply to a few countries with which our foreign relations are in a state of very special and acute difficulty.</p>
<p>This case involves Cuba.</p>
<p>The embargo that is involved here is very much like the Iranian assets control program that was before the Court in Dames & Moore, and the case involves the very statute considered in Dames & Moore, the Trading With the Enemy Act of 1917 and the International Emergency Economic Powers Act, which is known as IEPPA> ["].</p>
<p>Specifically, this case presents the question of the validity of regulations issued in 1982 by the Treasury which prohibit certain financial transactions incident to travel to Cuba.</p>
<p>In effect, these regulations provide that Americans traveling to Cuba may spend money for Cuban goods and services only if the travel involves Government business or involves journalism or involves scholarly research or a visit to close relatives, or if it is authorized by a specific license in connection with humanitarian activities or in connection with sporting or artistic exhibitions.</p>
<p>The regulations do not prohibit travel as such.</p>
<p>You are free to go to Cuba if, for instance, you have friends or relatives who invite you or will fund you, or if the Cuban Government or a Cuban organization will fund your visit, so that hard currency is not spent in Cuba.</p>
<p>But you can't spend American dollars in Cuba unless you fall within one of the licensed categories.</p>
<p>The 1982 regulations here modified a general license which had been issued by President Carter in March of 1977... that's an important date... which gave permission to Americans to spend American dollars when they went to Cuba.</p>
<p>Now, that general license itself was, however, subject to important qualifications on the flow of American travel dollars to Cuba.</p>
<p>For instance, American credit card companies were not allowed to make credit card arrangements in Cuba, and that made it harder for Americans to travel on credit.</p>
<p>Perhaps more significant, travelers who wanted to go to Cuba under that general license pretty much had to arrange for charter travel, because financial transactions in connection with any scheduled voyages to Cuba were not permitted by that license.</p>
<p>Both the '77 license and the '82 modifications were part of the overall Cuban assets control regulations, regulations that continuously since 1963 have subjected all economic transactions between Americans and Cuba or Cubans to a comprehensive system of licensure.</p>
<p>Section 201(b) of the Cuban assets control regulations has since '63 provided that no economic transaction in which Cuba has any interest may go forward without a license from the Treasury, so that by the terms of regulation 201(b) it has been unlawful since 1963 to spend American dollars in connection with travel to Cuba unless you had a Treasury license.</p>
<p>Now, from '63 to '77 these licenses were issued on an individual basis to particular individuals.</p>
<p>Then in '77 came the general license, which was in turn modified in 1982.</p>
<p>The legal issue before the Court is whether there is a valid legal authority for the 1982 modifications.</p>
<p>The Cuban assets control regulations were themselves issued under Section 5(b) of the TWEA, Trading With the Enemy Act, which broadly authorizes the President during war or during peacetime declared national emergencies to use rules or regulations or licenses to regulate or prohibit any transaction involving any property in which Cuba... in which a foreign country or a foreign national has any interest.</p>
<p>Now, as explained in our briefs, the question in the case arises because the TWEA was amended by Congress in December of 1977 to apply generally only during wartime.</p>
<p>Peacetime economic embargoes in connection with future national emergencies were switched by Congress onto a different statutory track under a new statute, IEEPA.</p>
<p>IEEPA gave the President pretty much the same substantive authority as he had under the TWEA.</p>
<p>In fact, IEEPA replicates the Section 5(b) TWEA language relevant to this case.</p>
<p>But IEEPA lays down new procedures and new predicates for the exercise of those peacetime powers.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Mr. Bator, what other countries were there at the time of the grandfather clause enactment which our Government had a broad prohibition on unlicensed property transfers?</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: The major standing embargoes in '77 were Cuba, North Korea, Vietnam and Cambodia.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: How about China?</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: There was... the China situation is complicated.</p>
<p>There was a general assets embargo, but it had been pretty much reduced to an assets freeze by the time of the statute through general licenses, so that the China situation was very different from these four comprehensive ones in terms of--</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: But arguably within the same authority--</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: --The China situation to us is the most difficult or the most borderline one as to what exactly was grandfathered and what Congress had in mind.</p>
<p>The China issue is pretty much moot by the fact that the whole embargo was taken off when the general settlement was made with China somewhat later.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: --But under your theory perhaps could be restored, is that correct?</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: It's... the Government simply has not taken a position, Your Honor, on the question of whether the legislative intent with respect to China is clear enough to warrant reimposition.</p>
<p>Of course, it couldn't be reimposed now because the whole assets situation... there would be no continuity now, since there was a general takeover.</p>
<p>So that as of how that issue really is moot.</p>
<p>That is, we do not contend that the grandfather clause authorizes the reimposition of embargoes which have been completely eliminated.</p>
<p>As Justice O'Connor question indicates, the problem of this case arises because, although Congress switched new national emergency embargoes onto the IEEPA track, future ones, at the same time it did grandfather the existing embargoes.</p>
<p>Congress decided that it did not want to force the President to issue new national emergency declarations under IEEPA in order to continue the four existing embargo systems in operation in 1977, and therefore it specified in the grandfather clause that TWEA authorities which were being exercised on July 1, 1977, could continue to be exercised as long as the President makes an annual determination that that is in the national interest.</p>
<p>And Presidents Carter and Reagan have each year made that determination.</p>
<p>Now, the Court of Appeals in this case held that the President was without authority in 1982 to modify the 1977 general license which governed the flow of hard currency to Cuba, because it reasoned that the '77 general license permitted many trave-related financial transactions; it was issued a few months before the July 1, '77, cutoff, and therefore it concluded that the authority to regulate those transactions was simply not being exercised at all on that date.</p>
<p>The Government believes that the most substantial question before the Court is the question of the proper scope of the grandfather clause, and that President Carter's 1977 general license is perhaps a good starting point for the analysis of that issue.</p>
<p>As I said, the Court of Appeals concluded that, since the March '77 general license authorized most travel-related expenditures, it follows that the authority to regulate them was not being exercised.</p>
<p>But we think that's a complete non sequitur and that it is based on a misunderstanding of the structure of the Cuban assets control program.</p>
<p>We think the authority to regulate financial transactions incident to travel was being exercised on that date at four different levels.</p>
<p>First, we have regulation 201(b), which prohibited all property transactions unless licensed.</p>
<p>This represented an underlying exercise of authority to demand licensure, and that has been continuously asserted since 1963.</p>
<p>Second, the general license gave permission to engage in transactions incident to travel, but against the background of regulation 201(b).</p>
<p>We think this was an act of regulation, not of deregulation.</p>
<p>That is, the Court of Appeals simply assumed that the exercise of an authority to regulate only goes on at such times when the activity is prohibited.</p>
<p>But we think that's a false picture.</p>
<p>It distorts the nature of a system of licensure.</p>
<p>Regulatory authority does not simply vanish when it is exercised to license an activity, and this point is made very plain by the words of the statute.</p>
<p>The grandfather clause doesn't authorize the preservation simply of prohibitions on the books.</p>
<p>It authorizes the reservation of authorities being exercised under 5(b), and 5(b) specifies that its authorities include the power to regulate, "regulate" by means of "licenses".</p>
<p>So to us the message is quite clear.</p>
<p>Congress was referring to the continuation of a licensing system, an ongoing licensing system, which of course--</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Do you think the message was as clear in the minds of Congress as it is to you from looking at the structure of the legislation?</p>
<p>Certainly there are expressions in the legislative history that would indicate that members of Congress may have had a different view and that they were really concerned about thinking that the authorities then being exercised were being grandfathered in, but nothing else.</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: --Well, Justice O'Connor, I think that there are countervailing intonations and quite often rather loose language in the legislative history.</p>
<p>Congress was torn by the fact that it wanted to accomplish two ends: one, to narrow the President's authority to use these peacetime embargoes; on the other hand, very clearly to allow the President to continue to operate these existing embargoes.</p>
<p>That really was the compromise.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Well, I haven't spotted anything in the legislative history that clearly indicates that the members of Congress were as aware of the structure that you propose.</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: Well, Your Honor, in our brief we do indicate that there are passages, although they are not as... we would be happier if they were clearer, but we think there are in fact specific examples in the legislative history where it was indicated that what would be grandfathered was an embargo system, not simply a kind of frozen list of specific prohibitions, because there was no reference, certainly no reference to anything involving the fact that travel was not to be regulated.</p>
<p>There is no specific indication of that in the history of the grandfather clause.</p>
<p>Congress must have been aware, Your Honor, that assets controls programs generally have been ongoing and rather flexible systems, subject to adjustment from time to time.</p>
<p>There is another point here, which is that travel in fact was being regulated at that time because the '77 license, general license, did include some specific regulations and prohibitions on financial transactions.</p>
<p>Now, that fact, of course, must be a major embarrassment to the Respondents' theory of this case.</p>
<p>It's ignored in their brief, ignored by the Court of Appeals.</p>
<p>It raises a very important question.</p>
<p>On July 1, '77, President Carter was in fact prohibiting certain financial transactions incident to personal travel, including all transactions incident to scheduled travel.</p>
<p>Now, how, in light of that, can it be said that the authority to regulate travel-related financial expenditures was not being exercised?</p>
<p>I remind the Court, too, that the '77 general license, which is so critical to the Court of Appeals' theory of this case, was explicitly by regulation subject to revocation and modification, and in that respect we think this case is governed and controlled by Dames & Moore, because in Dames & Moore the Court explicitly held that a general license subject to revocation is a contingent instrument, subordinate to the President's continuing underlying regulatory authority, and that reasoning seems to us compelling here.</p>
<p>I want to go back to Justice O'Connor's question, which I think is really the heart of the case.</p>
<p>What could Congress have had in mind when they grandfathered this?</p>
<p>We think that it is simply an incoherent account of what Congress could have meant to suppose that they were simply freezing an existing laundry list of specific prohibitions.</p>
<p>We don't think this is a sensible or a credible reading.</p>
<p>I don't think Congress could have wished to freeze the North Korean and the Vietnamese and the Cuban embargoes so that the President couldn't fill in loopholes or gaps, that he couldn't clarify coverage, that he couldn't add a restriction, for instance, in connection with a negotiation to create an incentive for settlement.</p>
<p>The ironic thing actually is that under the Court of Appeals' reading the executive may even be disabled from amending an embargo to implement a negotiated settlement with another country, because that settlement might call for the addition of new 5(b) measures, as indeed happened in the Iranian settlement.</p>
<p>Again perhaps for example to look at the general license, it's an interesting example, because when it was first issued in March of '77 it did not include the restriction on financial transactions incident to scheduled travel.</p>
<p>That was added in May of '77.</p>
<p>Now, suppose it had been added in August rather than in May.</p>
<p>Is it conceivable that the President would have been disabled from making it?</p>
<p>That was obviously an afterthought or, if you will, the filling in of something that was just overlooked.</p>
<p>But that kind of adjustment could not be made, we don't think that it creates a coherent system.</p>
<p>Now, the Court of Appeals' answer to this was, use IEEPA.</p>
<p>But to use IEPPA requires the President to issue a new national emergency declaration, and a declaration that Cuba or Vietnam represents an unusual or extraordinary threat to the United States.</p>
<p>And Justice O'Connor, if there's anything clear from the legislative history, it is that the Congress was persuaded by the Administration in this compromise that it would be undesirable and awkward to force the President to declare such a new emergency and make such a statement in order to maintain these four extraordinary embargoes.</p>
<p>The purpose of Congress to allow the President to maintain these four extraordinary embargoes without declaring a new national emergency would simply be frustrated if what we say is that the only thing that can be preserved is a frozen list of restrictions, that is, that a new declaration has to be made every time there is an adjustment or a gap filled or a new restriction imposed in order to create a bargaining chip.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Mr. Bator, may I ask one question about the change in May of 1977 of the general license.</p>
<p>I'm not quite clear as I look at the material at the very end of your brief where you quote the version of the asset control regulation at 10(a) on.</p>
<p>You say that's what was in effect from March '77 through May of '82.</p>
<p>Does that include the May '77 amendment or does it not?</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: Yes, Your Honor, that in fact is a... we did not discover the fact that there was a... that is, we used the--</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: You used something post-May of '77 to come here?</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: --No.</p>
<p>There was a change made in May of '77 from March of '77.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: What part... where do I find that in 10(a) to 12(a)?</p>
<p>What is new in there, because I'm just not--</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: I think, Your Honor, I'm going to have to--</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: --It's a rather critical part of your argument, because you're relying on that as evidence of the ability to make the regulations tougher.</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: --I'm relying on the fact that, although that happened before the cutoff--</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Right.</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: --the July cutoff, that it's simply a routine example of, if you will, second thoughts in connection with ongoing administrative regulations.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: I just want to be sure I have... I can follow at the appropriate time.</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: I would just want to say that I'm not... I could go back, but I think that subsections (4), (5), and (6), certainly (4) and (5), were added in May rather than in March, Your Honor.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: But they seem to be authorizations rather than restrictions.</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: Well, they're put in an odd way, but what they add up to when you come down to it in the end is the creation of a rule which says that you cannot expend any moneys in connection with scheduled trips.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: In other words, it's an authorization of all kinds of travel except scheduled trips?</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: Most of the material on 11(a) was added in May rather than in March.</p>
<p>I don't take that as a fundamental argument, Your Honor.</p>
<p>It just gives a clue to how these programs in fact are managed and that there is a constant system of adjustments and repairs.</p>
<p>I want to say a word... I have only a few minutes left... about the Passport Act of 1978.</p>
<p>That's a statute which the Respondents say forbids the use of TWEA authorities or IEEPA authorities.</p>
<p>Even if they did exist and even if TWEA authorities were grandfathered, they say that the Passport Act of '78 revoked, restricted, prohibited the President from regulating expenditures incident to personal travel.</p>
<p>They say that expenditures to personal travel are simply now a special category which may not be regulated under these comprehensive embargoes.</p>
<p>We think this reading would... in fact, we think it necessarily follows that what Congress on that reading, what Congress was doing in '78 was invalidating the '77 general license with its restrictions.</p>
<p>We think that this reading means that President Carter violated the Passport Act when in 1980 he used IEEPA to control expenditures, to prohibit expenditures in connection with travel to Iran.</p>
<p>And the point is significant to us because the Carter Administration was instrumental in the Passport Act of '78.</p>
<p>Nevertheless, President Carter clearly assumed that the Passport Act did not override this preexisting separate power to regulate travel expenditures in the context of comprehensive assets embargoes.</p>
<p>And we think that's the natural assumption.</p>
<p>The Passport Act says nothing about economic or financial transactions.</p>
<p>It says nothing about anything except the regulation of passports.</p>
<p>Nothing in the legislative history indicates that Congress was overriding an independent, long-standing regulatory power to restrict the flow of financial and economic benefits to countries which... and I want to remind the Court, the few countries with which by hypothesis our relations are in a state of acute difficulty.</p>
<p>The Respondents speak as if it were somehow inconceivable that Congress could say that passports must be issued on the one hand and yet that the President could continue to exercise an authority to restrict the flow of American dollars from American travelers abroad.</p>
<p>But there's nothing inconceivable about it.</p>
<p>It's an absolute commonplace of modern public policy in many countries... England and France... that have created fiscal restrictions on the expenditure of travel moneys, without in any way aiming at travel as such or trying to restrict the liberty of the citizens to travel.</p>
<p>And we do not credit the Respondents' suggestion that the TWEA on our reading, the grandfathered authority, can be used to negate the Passport Act.</p>
<p>We're talking about four grandfathered embargoes.</p>
<p>We're talking about the regulation of travel expenditures as a subsidiary element in the context of comprehensive assets programs.</p>
<p>We think that's simply a different subject than the subject of the regulation of passports.</p>
<p>Unless the Court has further questions, I would like to reserve the remainder of my time for rebuttal.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Very well.</p>
<p>Mr. Boudin.</p>
<p>ORAL ARGUMENT OF LEONARD B. BOUDIN, ESQ. , ON BEHALF OF RESPONDENTS</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: Mr. Chief Justice and may it please the Court:</p>
<p>I would like to address myself first to Justice O'Connor's question, what did Congress have in mind.</p>
<p>I do this before I come to the other aspect of the case, that we are dealing here with a liberty, a liberty recognized by the Court in the cases ranging from Kent to Agee and even Califano, protected by the Fifth Amendment.</p>
<p>But I thought Justice O'Connor's question really was directed to the heart of the case here.</p>
<p>Congress did not direct itself to the four countries referred to by my good friend the Deputy Solicitor General.</p>
<p>Congress was concerned about two things:</p>
<p>First, the broad power that the President had exercised over the many years which led Congress to pass the statute under consideration, which is not merely the grandfather clause, but the broad statute which included IEEPA, the Economic Control Act.</p>
<p>Congress in doing that was aware of the fact that the proliferated emergencies declared by the President over the years, A, were either outmoded or not justified and, as the administrative spokesman stated to the Congress, particularly the Assistant Treasury Secretary, there was no emergency at the time that Congress was considering IEEPA.</p>
<p>And as the administrative spokesman said, without an emergency, Mr. Bergsten, the Assistant Secretary of Treasury said,</p>
<p>"We recognize we do not have the powers to carry out the embargoes. "</p>
<p>Therefore, Congress passed this very broad statute which was upheld in IEEPA, in which Congress set forth a procedure bringing the President into the... bringing the Congress into the consultative operations of this statute, because it was concerned with what had been done in the past.</p>
<p>Now, what the Government is doing here is acting as if all we have to do here is consider what I will consider in a moment, the savings clause, and it forgets the dominant purpose of the legislation, which was to restrict the President, and that the savings clause was, as most savings clauses are, a narrow savings clause for the purpose of preserving something.</p>
<p>And that really is the question, Justice O'Connor: What were they trying to save?</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Well, right, and we have to focus on the legislative history--</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: Precisely.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: --for the coverage of the grandfather clause.</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: Exactly.</p>
<p>Now, if one looks at the statements made, as the Court of Appeals for the First Circuit pointed out and the Court of Appeals for the Eleventh Circuit in the Frade case which came to the same conclusion, one sees that they were concerned about the existing uses.</p>
<p>And you see there in the opinion of the Court of Appeals and in our brief and in the Frade opinion a reference to existing controls, existing embargoes.</p>
<p>You never see this inchoate conception which is suggested by the Government in its brief and argument.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Mr. Boudin, are you referring to the language of the Court of Appeals?</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: I'm referring specifically to the language used by the Congressmen--</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: By the Congress.</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: --discussing the problem.</p>
<p>And Your Honors will see, for example at page 39 of our brief, when Congressman Bingham observed:</p>
<p>"If the President has not used up to now some authority he has under 5(b), I don't know why it should be necessary to give him authority to expand what has already been done. "</p>
<p>And Your Honors will see the references made by Congressmen and by administrative spokesmen which appear at the bottom of page 39 of our brief in footnote 70, when they talk about powers currently operative, not powers inchoate, not powers possessed, powers currently operative; and then when they refer to current employment of controls.</p>
<p>This is everything that was said by the various people here, and you do not find any support for the suggestion made by the Government that there is some ambiguity in the legislative history.</p>
<p>Now, as a matter of fact, as Your Honors will see from our brief, a proposal was made to give the power to the Government, to the executive, under the savings clause, precisely the one which is suggested by my friend here... an old friend, I may say... the power to add new regulations, new controls.</p>
<p>And that legislation would have added another paragraph to the existing statute, which is that the President can exercise not only the authorities being exercised, but any other authority conferred upon the President by that section may be exercised to deal with the same set of circumstances.</p>
<p>And then came the very important colloquy which came at the end, not in the early stages of the legislation, as the Government suggests, between the leading representative of the Administration, Mr. Bergsten, Assistant Secretary of the Treasury, when he was asked:</p>
<p>"First of all, Mr. Bergsten, would it be your understanding that Section 101, the grandfather clause, would strictly limit and restrict the grandfathering of powers currently being exercised under 5(b) to those specific uses of the authorities granted in 5(b) being employed. "</p>
<p>--it is hard to find...</p>
<p>"as of June 1, '77, now July 1? "</p>
<p>Mr. Bergsten said: "Yes, sir".</p>
<p>And then the question was:</p>
<p>"And it would preclude the expansion by the President of the authorities that might be included in 5(b) but are not being employed as of June 1, 1977? "</p>
<p>And he says: "That is right".</p>
<p>Now, in fact, on July 1, 1977, in reality, forgetting about whether you could travel on this plane or that plane, which is simply a question of mechanics, in reality there was no substantive bar to travel to Cuba.</p>
<p>I will take up in a moment this whole conception of general licenses.</p>
<p>But in fact the realities of the situation were there was no embargo on travel to Cuba.</p>
<p>And the Government's petition at page 5, as I recall it, original petition for certiorari, stated what is our view, that the purpose of the savings clause was "to continue an existing embargo".</p>
<p>And the question is, was there an embargo on travel to Cuba?</p>
<p>There were difficulties, but were those an embargo on travel to Cuba, and the answer is no.</p>
<p>And I would consider this a very telling argument even if it were not dealing with liberty.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Well, Mr. Boudin, but they take the position that there was in effect the general prohibition on financial transactions, regulation 201(b).</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: Correct.</p>
<p>May I address that?</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Please.</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: The Government actually has five different theories of what the exercise of authorities means, but let me address myself, which we've talked about in our brief, to the general license theory.</p>
<p>The general license is merely a convenient device for withdrawing controls previously in existence, and Your Honors will see that when you look at the China situation.</p>
<p>There is a general license exempting China for the most part from the controls.</p>
<p>Under the Government theory, whatever the executive is now doing, that general license is a control.</p>
<p>A general license is merely a technique.</p>
<p>When you have a broad prohibition, then you decide not to carry out that with respect to particular areas, you have a general license.</p>
<p>And the best illustration would be if I were to take an alternative way to handle the situation.</p>
<p>If in Section 201, which forbids financial transactions... and I'm assuming for the purpose of this discussion that a man is engaging in a financial transaction with respect to property, although I have some hesitation in accepting that.</p>
<p>The statute, Section 201, could read as follows: All transactions with respect to property in which Cuba has an interest are prohibited, except those relating to travel.</p>
<p>Now, no one would suggest if the statute, if the regulation had been thus written, that there was an exercise of control over travel.</p>
<p>But because it is in the form of a general license, the Government suggests that somehow or other they are giving permission to exercise this liberty of travel.</p>
<p>But what they're really doing in the general license technique is withdrawing it, withdrawing the prohibition of travel from the transactional area.</p>
<p>This of course brings to mind Justice Rehnquist's opinion in Dames against Moore.</p>
<p>Dames against Moore... Dames & Moore, excuse me, against Regan was a case in which there was a general license issued and the Government's contention, upheld by the Court... and I may say by me supporting the Government in that case... was that where the President had attached assets, or rather frozen assets, and then released them and allowed them to be subject to attachments, the President by virtue of a later provision was able to... was able to recover the assets and use them the way he did.</p>
<p>But in Dames against Moore there was no grandfather clause.</p>
<p>We are dealing here with the meaning of the grandfather clause, and the grandfather clause was intended, as the two courts that I referred to indicated, was intended to allow only those prohibitions that were in effect.</p>
<p>Now, why do I say that it was intended to do that, aside from the language, which is uniform, as Your Honors will see.</p>
<p>It is precisely because the Congressmen who were in charge of this and the administrative spokesmen recognized that they were attempting to save something, to save the embargoes in existence, and most important, to save the assets which were under embargo, to save those from being given away, because it was recognized there would be dealings with Cuba and with other countries eventually.</p>
<p>But more than that it is not, because the continuation... and this is the key problem with the Government's position... the continuation under the savings clause of those controls, those embargoes, was not predicated upon an emergency, it was predicated upon a non-emergency, and it is because of that that we have to give a limited interpretation to those words in the savings clause.</p>
<p>Now, when we consider the Government's argument of flexibility, an argument which this Court of course upheld in Dames & Moore, that was flexibility under IEEPA, the Economic Control Act, subject to the control which Congress had and exercised in that real emergency of consultation with the President.</p>
<p>Flexibility is of course necessary in foreign relations, and that's why IEEPA was passed.</p>
<p>Flexibility is not necessary in connection with the savings clause, because the savings clause is based upon a narrow area which cannot be justified on an emergency basis.</p>
<p>And Mr. Bergsten recognized and Mr. Katz, from another Department of the Government, in testifying recognized that there might not be constitutional validity even to those things being grandfathered, because there was no emergency.</p>
<p>So that whether we take the conception of the statute as a whole, it comes down to the question of what was prohibited.</p>
<p>And again, just to remember what we said about general licenses, lest the conceptual thing overlook the reality here, in the China situation, which the Government says it's troubled about answering, in the China situation where there's a general license permitting everything, we could restore that, if we wanted to, under the grandfather clause.</p>
<p>Now, I do want to address--</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: As to China that's not right, is it?</p>
<p>Don't you have... doesn't the President have to make an annual declaration of a continuing, to keep the authority alive?</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: --A continuing national interest, rather than emergency.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: But he did not do that with respect to China, so that could not be revived.</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: I don't... yes, Your Honor is quite right.</p>
<p>I don't think he did it.</p>
<p>I assume he didn't do it with respect to China.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Well, they say in the briefs he didn't do it.</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: I'll accept that.</p>
<p>Now, I want to remind the Court what the Government has done here.</p>
<p>The Government has, in contrast to the rather clear-cut position taken by the Court of Appeals for the First Circuit and the Eleventh independently... Your Honors will read the reasoning of the Court of Appeals' opinion, I trust, in the Eleventh Circuit... the Government gives four or five different possible interpretations of the grandfather clause, itself making each one suspect, although not conclusively so, of course.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Mr. Boudin.</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: Yes.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Your brief struck me as somewhat different in theory than the Court of Appeals' opinion.</p>
<p>Was I wrong in thinking that?</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: I do know that the Government made that point.</p>
<p>I think we and the courts below, both courts, Courts of Appeals, Eleventh and the First, are of the opinion that if there is a substantive control being exercised by regulation... that may be the thing that was confusing... a substantive control being exercised over travel or over anything, that control could be continued by the grandfather clause.</p>
<p>We do not differ with the Court of Appeals.</p>
<p>Now, remember what the Government has said, if Your Honors please: We believe that one possible reading of the grandfather clause is... rather an odd way to find a clear-cut statute involving a basic liberty like the right to travel.</p>
<p>The first argument is that if any 5(b) authority is exercised, the Government preserves all 5(b) authorities.</p>
<p>The second argument is that under any exercise of a 5(b) authority, referring to the statute now, with respect to property, then everything can be exercised.</p>
<p>We pointed out in our answering brief that there was a problem raised with the Government's two views, and the main problem was that with respect to many countries, not merely the four that the Government now targets, although there was no indication they were to be targeted, with respect to many countries there were, A, controls under 5(b) generally and controls over transactions.</p>
<p>So the Government came back with its general license theory which, as I have indicated, is really a language problem, a semantic problem, rather than dealing with the reality.</p>
<p>And with respect to that, I trust Your Honors will look at the House Committee report on this bill, Report No. 95-459, which we cite in our brief, but I regret to say somewhat elliptically, because that House report, in discussing the Cuban situation after it discusses a number of other countries, at page 6 says:</p>
<p>"Under the Cuban assets control regulations, all transactions between the United States and Cuba are similarly prohibited. "</p>
<p>--now, there's a comma after that... "with certain exceptions".</p>
<p>In other words, they are prohibiting certain things, but the exceptions at that time were travel.</p>
<p>Travel, by the way, is separately mentioned by Professor Lowenfeld, who is a leading spokesman, scholarly spokesman at least.</p>
<p>Secondly, with respect to the general license, again addressing myself to questions that were put by two of Your Honors, the same page 6 explains my position and the Court of Appeals' position on what it means to have a general license, not that it means that you're permitting, that you're regulating something; it means you're withdrawing it from control.</p>
<p>And here are the words used on page 6:</p>
<p>"On May 8, '71, the Department licensed most... most... subsequent transactions with China, while continuing the blocking of China assets in U.S. hands before that date. "</p>
<p>"This had the effect of lifting. "</p>
<p>--I emphasize the word "lifting"...</p>
<p>"the United States trade embargo of China. "</p>
<p>Now, if you have lifted an embargo... I think we and the Government, at least theoretically, are in agreement.</p>
<p>If you have lifted the embargo, then there is no embargo.</p>
<p>And there was no embargo on July 1, 1977, after they had lifted the embargo.</p>
<p>I have not addressed myself, because I wanted to get to the heart of the problem raised by two of Your Honors in asking questions of Mr. Bator, of other considerations in connection with the statute, and that is what you would have in terms of general tenets of construction rather simple.</p>
<p>A savings clause is normally a narrow exception, because you have a broad remedial purpose.</p>
<p>Here we have a statute which involves liberty of movement, and here you have a statute with very serious criminal sanctions, all of which have been grounds historically for considering savings clauses and all statutes in a narrow way.</p>
<p>But I had omitted one thing, Your Honors.</p>
<p>After I finished with the general license view, I did... the Government did come in in its answering brief, its reply brief, with a new theory, and that was the one that Mr. Bator quite properly articulated, since it was the newest theory of the Government, namely four countries are being targeted.</p>
<p>Four countries.</p>
<p>It's no longer the original theory of 5 being exercised and therefore you could exercise new authorities; no longer the property conception; it's no longer even the licensing thing.</p>
<p>The important thing is, Congress had in mind... I can't call it a bill of attainder, having heard yesterday's argument.</p>
<p>Congress had in mind four countries.</p>
<p>Well, this is an odd situation.</p>
<p>So you have a flexibility argument that they would recognize, that they insist upon with respect to four countries, and you have another standard, namely non-flexibility with respect to all other countries of the world.</p>
<p>Your Honors will read or have read the legislative history.</p>
<p>You'll find no theory under which Congress drew a line between "comprehensive embargoes and embargoes generally".</p>
<p>Now, as far as IEEPA is concerned, one of course has to ask, not under my theory that perhaps IEEPA couldn't control, but under the Court of Appeals' implied view that IEEPA applies, why the Government doesn't deal, doesn't go under IEEPA.</p>
<p>They didn't want, the Administration spokesmen and the Congressmen didn't want, for the continuation of the old controls in old situations to have to have an application under IEEPA.</p>
<p>But IEEPA wa passed for a purpose.</p>
<p>It was passed after at least seven years of study by the Congress.</p>
<p>It was passed because that's what Congress wanted when we had a crisis situation.</p>
<p>And of course, the Government claims that the current situation is a quasi-emergency or emergency.</p>
<p>It is a new situation which they say has arisen since 1977, to when a new Administration took effect.</p>
<p>Well, if this is a new situation, if this is an emergency, then the Government is supposed to go to the Congress, the President is supposed to go to Congress and consult with the Congress on the IEEPA and put into effect these regulations.</p>
<p>And on their theory that this is a serious problem, this is exactly the thing that Congress had in mind.</p>
<p>Congress didn't intend that when new crises arose that suddenly Congress... the President could disregard the IEEPA procedures.</p>
<p>Seven years of study went into the drafting of the IEEPA.</p>
<p>There was a reason for it.</p>
<p>And they have not followed that procedure.</p>
<p>This will bring me very briefly to three other points that have been made in our brief and that obviously the Court of Appeals did not decide any of those points, although I think it considered some of them in determining the general interpretation, the narrow interpretation of the savings clause.</p>
<p>The first relates to the 1978 statute.</p>
<p>The 1978 statute was passed because the Congress was not satisfied, as a matter of fact the Administration wasn't satisfied, to rest merely upon President Carter's removal of bars to travel to Cuba.</p>
<p>And the reports of the committees in charge said, we don't want this to depend upon a particular Administration's policies or discretion.</p>
<p>Great prescience, as we see.</p>
<p>And they were concerned about liberty of movement, and they said so, and the basic Helsinki general declarations, which are not statutory of course, relating to freedom of movement.</p>
<p>Now, the Government says it talks about the Secretary of State and it talks about passports.</p>
<p>Why do we think this has anything to do with this case?</p>
<p>Well, the reason we do is because the Congress was concerned about protecting liberty of movement.</p>
<p>If it directed its attention to the Secretary of State, it was because that was the normal way in which travel restrictions were imposed.</p>
<p>And as we argued in Laub, and as we argued in Zemel, as we argued in Kent, the whole history of travel control had been a history in which the Secretary of State was doing his job, controlling it, sometimes we said wrongly sometimes the Court said rightly; and Treasury, if it did anything, was ancillary.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Are you saying that none of the restrictions ever issued under the TWEA from the time of its passage had any effect on the control of travel?</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: Your Honor will note that the restrictions were never restrictions by regulation directed specifically to travel, and I have suggested, yes, I have thought that TWEA was never passed to control travel as such.</p>
<p>I do recognize that every time the Secretary of State gave a license... sorry, amended a passport... by removing restrictions, the Treasury Department would automatically... and I say automatically... give a license to spend money.</p>
<p>But I have found nothing in the legislative history of TWEA that suggests that that statute really authorized the practice even of the Treasury in connection with licensing.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Well, it authorizes the restriction and control of property in the hands described, and if the regulation affects the property the fact it has an incidental effect on travel doesn't make it illegal under the statute.</p>
<!-- Leonard_B_Boudin--><p><b> Leonard B. Boudin</b>: Of course.</p>
<p>I haven't suggested that.</p>
<p>I have suggested that historically travel was never contemplated by the Congress, and that each time legislation was proposed to control travel nobody ever mentioned the Treasury Department, nobody ever mentioned TWEA.</p>
<p>And this Court in discussing either in Haig or in Laub, in discussing travel controls, recognized that the first travel control statute was a 1918 statute, not the 1970 TWEA.</p>
<p>I must say to Your Honor, as I say, we've studied this problem for a long time.</p>
<p>It is a murky area.</p>
<p>I cannot... it's probably the reason why the Court of Appeals did not think it advisable to found its decision upon that.</p>
<p>Let me address finally the constitutional issue.</p>
<p>I don't want to overlook it.</p>
<p>We raised it, that the Court consider the fact that we are dealing with a liberty to be significant in interpreting the grandfather clause, and that is this.</p>
<p>I would agree... I must agree, having read Agee, having looked at a few other cases of this Court in the travel area and elsewhere... that there are emergency circumstances under which travel could be controlled, forbidden, but not this one.</p>
<p>The Court had a very serious nuclear confrontation problem which it addressed, with the consequent dangers to American citizens traveling to Cuba, when I argued Zemel against Rusk, and the Court held there, not that the President could prevent the travel, but it said that the President could not be compelled through the Secretary of State to validate a passport for travel to Cuba.</p>
<p>Then came Haig against Agee, the second clear-cut bar on travel, but of an individual.</p>
<p>And the Court is aware of the stipulations made by Congress and of the findings made in the Chief Justice's opinion with respect to the great danger to foreign relations, to national security, in the possible assassination of CIA agents.</p>
<p>Given those facts, I may say, I don't... quite aside from the question of statutory authorization, I don't see how the constitutional power of the Government could be challenged to meet situations such as Haig and Agee.</p>
<p>But what do we have here in reality?</p>
<p>We have a hypothetical that if somebody goes to Cuba with his dollars, including these Americans who have never violated any laws at all and who are perfectly good people, if somebody goes to Cuba with his dollars, that money will someday help build a Cuban tourist industry.</p>
<p>I'm not an authority on how to build an industry, including a tourist industry, but I suspect it's a long way off between the dollars of American citizens today and building it.</p>
<p>And that industry will make money, and with that money they will eventually be able to subvert Latin America against American interests.</p>
<p>Now, I suggest this series of hypotheticals is far too tenuous, particularly in the light of the amount of money which, as we describe in our brief, we are allowing to go to Cuba by the travel that is permitted.</p>
<p>Thank you, Your Honor.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Do you have anything further, Mr. Bator?</p>
<p>REBUTTAL ARGUMENT OF PAUL M. BATOR, ESQ., ON BEHALF OF PETITIONERS</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: I have a few points I'd like to make.</p>
<p>Thank you, Mr. Chief Justice.</p>
<p>I think that Mr. Boudin and the Government are in happy agreement on what the central issues are.</p>
<p>The question is what Congress meant by the grandfather clause.</p>
<p>That in turn depends crucially on what the situation was in '77 with respect to the authorities being exercised under the TWEA.</p>
<p>Mr. Boudin takes this whole bundle of complex authorities, which include the general regulation 201(b), the restricted general license, the fact that that restricted license is subject to revocation and modification, and he just says that all adds up to total deregulation, and he says a general license in general is nothing but an administrative technique for deregulation.</p>
<p>But the very first exercise of power to regulate travel-related transactions under the TWEA in 1940 by President Roosevelt, in connection with remittances abroad, to travelers abroad, was by way of a general license and asserted the authority to restrict expenditures over $250 a month.</p>
<p>If this Court will read its own opinion in Dames & Moore, it will see that there was a general license in that case and it was not simply an administrative technique which receded and said, we are no longer exercising the power to regulate.</p>
<p>It is simply a contingent and subordinate instrument.</p>
<p>Now, Mr. Boudin read a sentence from the House report which said that in connection with China the structure of the situation did look as if the authority to regulate had been reduced to a very, very narrow point, and that is why we have this.</p>
<p>We are troubled by the question as to what the grandfather clause would have implied for China if that question were still a live question today.</p>
<p>But the very question... the very sentence that Mr. Boudin read you is followed by the following sentence.</p>
<p>After</p>
<p>"this had the effect of lifting the U.S. trade embargo of China. "</p>
<p>it then goes on and says:</p>
<p>"However, the embargoes of North Korea, Vietnam, Cambodia, and Cuba continue. "</p>
<p>"Second. "</p>
<p>the report continues,</p>
<p>"under the Cuban assets control regulations all transactions between the United States and Cuba are similarly prohibited, with certain exceptions. "</p>
<p>That is, the structure that is suggested here is quite different.</p>
<p>It's suggested that the general regulation continues, but subject to exceptions.</p>
<p>It's not a statement about deregulation.</p>
<p>Mr. Boudin objects to the fact that we think the fair reading of the legislative history targets these four countries.</p>
<p>The very last thing Mr. Bingham said on the floor of the House was that "This legislation"... that is, that he said about the grandfather clause was, he says on the floor of the House:</p>
<p>"This legislation specifically grandfathers the embargoes against Vietnam, Cambodia, Laos and Cuba, and other existing embargoes, so that they are not affected in any way by this legislation. "</p>
<p>The one he dropped from there was North Korea.</p>
<p>So it is targeted, and he says they are not affected in any way.</p>
<p>Now, one further quick point, Mr. Chief Justice.</p>
<p>The Congress I think was persuaded in 1977 that these four situations were extraordinary and that special powers needed to be maintained to allow the President to conduct a credible and serious foreign policy with respect to these four extraordinary situations.</p>
<p>It's the statute that says that the President does not need to make a new emergency declaration in connection with these four embargoes.</p>
<p>That doesn't mean that our relations with these countries have not and cannot from time to time reach very acute and difficult circumstances.</p>
<p>The fact that the President has not formally declared a new state of emergency with Cuba has no probative effect on what is the state of our relations with Cuba as long as it is true, as the President was persuaded is true, that he has authority to continue to administer these embargo systems because of the extraordinary situation that persists with these four countries.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: Mr. Bator, may I ask just one question I'm a little puzzled about.</p>
<p>Apart from these four countries, just in other parts of the world, as I understand it there are certain kinds of property transactions that are prohibited by the President.</p>
<p>And are those prohibitions also pursuant to the TWEA, and if so to what extent do they survive and is there any flexibility under your theory for changes in those?</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: Your Honor, there are very special and specific prohibitions, there were in '77 under TWEA, with respect to the export of what I believe are described as strategic items to certain countries.</p>
<p>And we assume that those are continued in place under TWEA and they may be maintained without a new IEEPA.</p>
<!-- Unidentified_Justice--><p><b> Unidentified Justice</b>: But you would not--</p>
<!-- Paul_M_Bator--><p><b> Paul M. Bator</b>: We do not think, we do not think it would be a fair reading of this legislation to use those as a springboard for a comprehensive assets program.</p>
<p>We have never maintained that.</p>
<p>Unless there are further questions--</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Very well.</p>
<p>Thank you, gentlemen.</p>
<p>The case is submitted.</p>
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Thu, 30 Aug 2012 22:15:34 +000081574 at http://www.oyez.orgHaig v. Agee - Oral Argumenthttp://www.oyez.org/cases/1980-1989/1980/1980_80_83/argument
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<a href="/cases/1980-1989/1980/1980_80_83">Haig v. Agee</a> </div>
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Transcript:&nbsp;</div>
<p>ORAL ARGUMENT OF WADE H. McCREE, JR., ESQ., ON BEHALF OF THE PETITIONER</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: We will hear arguments next in Muskie v. Agee.</p>
<p>Mr. Solicitor General, I think you may proceed when you are ready.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>This case presents the question whether the President of the United States acting through the Secretary of State has the authority to revoke the passport of an American citizen whose international travel activities concededly have caused and will continue to cause serious damage to the national security and to the foreign policy of the United States.</p>
<p>The jurisdiction of this Court is found in 28 U.S.C. 2254(1), and the facts that give rise to this controversy may be succinctly stated.</p>
<p>For 11 years, from 1957 until 1968, respondent, an American citizen, was employed by the Central Intelligence Agency in the course of which employment he took an oath which this Court considered in Snepp recently, not to divulge, except upon prior approval, any information gained in the course of his employment.</p>
<p>During the course of his employment he became acquainted with the techniques of intelligence gathering of the Central Intelligence Agency, and learned the identities of many covert operatives who were employed by or utilized by that agency.</p>
<p>Many of these persons are still employed abroad by the agency.</p>
<p>In 1974 respondent publicly announced his intention to disrupt and to destroy the Central Intelligence Agency.</p>
<p>I'd like to direct the Court's attention to Footnote 2 on page 3 of our brief in which, in an extraordinary press release in London on October 3, 1974, he said... and I'll just mention the first paragraph:</p>
<p>"Today I announced a new campaign to fight the United States CIA wherever it is operating. "</p>
<p>"This campaign will have two main functions: First, to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating; secondly, to seek within the United States to have the CIA abolished. "</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Is that in the record?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: It's in an affidavit that was filed with cross-motions for summary judgment in the district court.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And not controverted?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: And not controverted.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: So it is in the record.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: General McCree, when was the respondent issued his passport?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: I believe his passport... I can't answer that precisely without reference to the record, but his passport was issued, I believe, before he terminated his employment, which would be 1968, because... I'm not certain.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: Before the issuance of the press release?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Before the issuance of the press release.</p>
<p>But I can't tell you specifically, Mr. Justice Rehnquist.</p>
<p>I can furnish that if it becomes relevant.</p>
<p>The respondent has traveled abroad extensively from his current residence in the Federal Republic of Germany, and is purported to identify CIA agents, employees, and sources in several countries.</p>
<p>These activities have resulted in a number of understandable consequences, including his exclusion from four West European countries because of these activities.</p>
<p>On one occasion his coauthor of a book in Kingston, Jamaica, identified 15 reported CIA agents whose homes... the homes of two of which were violently attacked by armed men subsequent to the disclosure.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: General McCree, may I ask you this question, which perhaps I ought to know the answer to but don't.</p>
<p>What is the purpose of a passport?</p>
<p>It's been my own experience in the couple of times I've been abroad other than in the Army that you don't need a passport to get out of this country.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: A passport is currently required both to enter and to leave the United States under an Act of Congress in 1978, unless the President provides otherwise by rule.</p>
<p>And he has provided otherwise by rule with reference to any country, I believe, in this hemisphere except Cuba, and certain Western European countries do not require it either.</p>
<p>But there is such a statute--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And with reference, I think, to all members of the Armed Services who leave the country under orders, because they're ordered to.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --And that would of course--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: A soldier doesn't need a passport.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Of course he does not.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: To be sent to West Germany.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: And that's, of course, not inconsistent, either, with the presidential rule which exempts non-military personnel from leaving the country.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: Do you think that if the President should appoint Mr. X as his ambassador plenipotentiary to the Middle East and direct the Secretary of State who is his employee to issue a passport to him, that Congress could prohibit the issuance of that passport?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: I think not, and I'm confident he could not, and it may be that there is a general rule which would exclude a person.</p>
<p>Certainly, the authorization vested in the President in the Travel Control Act of 1978 would more than cover that, because the President can exempt from the operation of this statute, which forbids departure and reentry without a passport, according to rules and regulations that he might promulgate.</p>
<p>There are... to reply to Mr. Justice Rehnquist's first question, the passport as I understand it serves two purposes.</p>
<p>First, the purpose of identifying the bearer as a citizen or a national of the issuing nation; and second, to request free passage for him from a foreign nation as well as the efforts of the foreign nation to facilitate his travel.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: In its origins, Mr. Solicitor General, was it not in effect a letter of introduction from the President of the United States?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: It was essentially that, Mr. Chief Justice.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: And are there not extant passports given 190 and 180 years ago that were personally signed by the President?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: There very well may have been because before 1856 the Congress did not enter this area of passport control at all.</p>
<p>Before 1856, the first passport act, the President of the United States, the Secretary of State, and indeed other persons, including governors, mayors, and in some instances notaries public executed, issued passports, and the purpose of the Act of 1856, as we point out in our brief, was to restrict the issuance just to the Secretary of State, acting under the President of the United States, under such rules and regulations as he might promulgate.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But even after 1856, for many years, almost a century or more, a passport was not a travel control document as such, was it?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: That's exactly right, and except in time of war, there were few instances when it occurred.</p>
<p>As we show historically in our brief, in the War of 1812, for example, for the first time that we could trace, a passport was required for travel control, and this applied to persons who had crossed the enemy lines.</p>
<p>I think this was in 1815.</p>
<p>The second time I believe it happened was at the time of the Civil War, when again a travel control statute was enacted.</p>
<p>The third time was 1918, just after the First World War, when again a travel control statute was issued.</p>
<p>And part of our argument, of course, is that when these travel control statutes... and I could take the others from 1918.</p>
<p>There was 1941, and 1952, and then 1978.</p>
<p>When each of these travel control statutes was passed, they assumed that the President would be issuing and refusing to issue passports, because a travel control act would make sense to require a passport if it didn't emanate from someplace, nor would it make sense if there was not the power to revoke or, indeed, to decline its issuance.</p>
<p>And we contend that this is evidence that the Congress intended the Secretary of State to have the authority which we insist he possessed here to revoke respondent's passport.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, on the other hand, you can kind of turn that argument around and say that so long as a passport was no more than a letter of introduction, so to speak, that maybe it was in the discretion of the President not to give such a letter to anybody whose morals he didn't like, but it wouldn't affect that person very much.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: That's correct, and there have been instances when the President has endeavored to do that, just because he didn't approve of someone's political beliefs, for example.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Right.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: And that's the Kent case, where this Court without reaching the constitutional contention that was made there, held that a passport could not be denied a person because of his political affiliation.</p>
<p>And later when the Congress attempted to do that, in Aptheker and Dayton this Court determined that it was unconstitutional to do it.</p>
<p>We're not contending for thought control, or the control of associations here.</p>
<p>We're contending that when a citizen's activities, not his thoughts, abroad are causing or are likely to cause serious damage to the national security and the foreign policy of the United States, that the President has the power not to issue the passport or, if having issued it, to revoke it.</p>
<p>That's exactly what happened in this case when in December, 1979, just a month after the seizure of the hostages in Teheran, and after this extraordinary statement at a press conference by the respondent, the Secretary of State notified respondent that his passport had been revoked and told him that he was entitled to a hearing under the appropriate regulation, and offered to hold an expedited hearing in West Germany where respondent lives.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And in this case the effect of the revocation of the passport was to bring the man home and make him stay there?</p>
<p>To his home, back in our country?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: This would be the purpose of it.</p>
<p>Or certainly to deprive him--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And that wouldn't have been the effect of the revocation of a passport in the 19th century?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Without a travel control; that's correct.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: In the 19th century?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Without a travel control statute, concomitant travel control statute, which we say must be considered in pari materia with this passport control.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What, as a practical matter, happened when it was revoked?</p>
<p>Did he turn it in and did he come back to the United States?</p>
<p>Does the record tell?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: I'm advised that he went to the consulate where he tendered it for validation, and it was taken up by the employee at the consulate, and he was given instead an identification card which would permit him to return home, but he cannot use for extended travels, and so physically his passport has been cancelled.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But isn't the question whether he can use that card for extended travel a question of whatever law he, the country he seeks to travel to or from?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: It may be, because another country can of course, a sovereign country can have its own--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: As far as American law is concerned, the only thing that... it doesn't prejudice his ability to come back to the United States, and apparently he doesn't want to do that.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --That's... well, he may want to do that but in any event he could not--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But if he did he couldn't get out again?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --He would not get out again.</p>
<p>Also, it does not identify him as a person who is entitled to the protection of the United States in that country.</p>
<p>And it's... anyone who's... as of course the members of the Court have done, who have traveled internationally, recognize that it's better to be with a passport than without a passport.</p>
<p>That's the issue... but that's the only sanction which has been imposed upon him for these activities here.</p>
<!-- byron_r_white--><p><b>Justice White</b>: Mr. Solicitor General, is there a specific statute which permits revocation?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: There is no specific... there is not.</p>
<p>No, sir.</p>
<p>There is not.</p>
<p>In 1926, July 3, the last of the series of statutes authorizing the President of the United States or the Secretary of State to issue passports, in accordance with rules and regulations, does not contain either the power to refuse or to revoke--</p>
<!-- byron_r_white--><p><b>Justice White</b>: How long has there been a regulation which permits the Secretary to revoke?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --We... in our--</p>
<!-- byron_r_white--><p><b>Justice White</b>: There is now one, I take it?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Yes, the current one, I believe, was enacted in 1968, but there have been regulations and rules of the Department of State going back before the statute of 1856.</p>
<!-- byron_r_white--><p><b>Justice White</b>: With respect to revocation?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: With respect to denial and revocation.</p>
<!-- byron_r_white--><p><b>Justice White</b>: Covering both?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Some of them.</p>
<p>We have instances in our brief.</p>
<p>For example, on page 25 of our brief, where we discuss the Passport Act of 1856.</p>
<!-- byron_r_white--><p><b>Justice White</b>: Well, has... when was the Travel Act passed, 8 U.S.C. 1185?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: The current one was July 3, 1926.</p>
<p>But it's--</p>
<!-- byron_r_white--><p><b>Justice White</b>: And have there been, was there--</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --It's the successor of the Act of 1856.</p>
<!-- byron_r_white--><p><b>Justice White</b>: --And have there been... has that been reenacted since 1926?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: It has not.</p>
<p>The current Act is the 1926 Act, the Passport Act.</p>
<!-- byron_r_white--><p><b>Justice White</b>: But prior to that, or at least since that, there have been, you say, express regulations permitting revocation?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Since that there have been several regulations and rules promulgated.</p>
<!-- byron_r_white--><p><b>Justice White</b>: And before that?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: And before that.</p>
<p>We set some of them out on page 25 of our brief, and 26; again on page 29 and 30 of our brief; again on pages 35 and 36 of our brief.</p>
<!-- byron_r_white--><p><b>Justice White</b>: And what about the 22 U.S.C. 211(a) which authorizes the Secretary to grant passports?</p>
<p>Has that been reenacted recently?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Not since 1926.</p>
<p>But as we show--</p>
<!-- byron_r_white--><p><b>Justice White</b>: Has it been amended since?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --It has not.</p>
<p>But as we show... it has not been amended with reference to the claimed authorization here.</p>
<p>It has been amended, I believe, insofar as it pertains to area, to permissible areas, where the holder of a passport can go.</p>
<!-- byron_r_white--><p><b>Justice White</b>: Well, hasn't the process, though, for issuing passports been revised in the last 20 years?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Oh, from time to time there have been--</p>
<!-- byron_r_white--><p><b>Justice White</b>: I mean, don't you... didn't you used to be able to get it at some district courts?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Oh, yes, it's been changed several times, and our point, and our argument is, that with the changes, as Mr. Justice White has pointed out, where the delegated power to be issued from courts to passport offices and so forth, the Congress being aware of this practice by the Secretary of State has never seen fit to withdraw the power to deny the issuance on the one hand, or to deny the power to revoke a passport once issued on the other, for the reason involved here, and that is the national security of the country, which--</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: Do you think that the Congress would have the authority to do that?</p>
<p>Take this hypothetical, that the Congress decides that there are just too many people leaving the country and traveling around and as a result we're having to provide too much protection in the way of military force abroad, because they're getting into trouble.</p>
<p>So we don't want anybody leaving the country and therefore we forbid the issuance of passports.</p>
<p>Do you think--</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --That would raise a constitutional question, at a minimum, because this Court has held that the right to international travel is a constitutionally protected right, although entitled to lesser protection than intrastate travel.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: --It's also held in Curtiss-Wright that the President is the sole organ of execution in the area of foreign affairs, is it not?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Well, that, of course, is the separation of powers argument, which would also be involved were there to be such a situation as the Court has propounded.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, I gather, Mr. Solicitor General, that as to the subject of revocation, insofar as there are any constitutional implications, it's irrelevant that Congress has not expressly given the Secretary of State power to revoke?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Well, I would contend that.</p>
<p>But we are not claiming for the purposes of this litigation the inherent power to revoke, because we--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, you're not suggesting either, are you, that the power to revoke depends upon some statutory authority?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Not at all, but we're willing to address this question as the Court of Appeals addressed it, which was to see whether the Congress impliedly granted the authority to revoke when it granted the authority to grant.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And so far, at least, knowing that there were such regulations, it never did anything to--</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: It never took any steps.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: --In any way modify or repeal them or anything else?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: It never did with reference to either of these matters.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And it most recently amended the statute in 1978, didn't it?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: In 1978 it amended the Travel Control Act.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And also limited the Secretary's power--</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: And limited the area--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: --On area restrictions.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --And it did not do this, being fully aware of these matters.</p>
<!-- william_j_brennan_jr--><p><b>Justice Brennan</b>: So that the statutory authority is requisite; if it is at all, it's there.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: This is certainly our contention.</p>
<p>The court below followed that analysis to see whether there was congressional grant of authorization by implication, because concededly it is not expressly there, and it found that there was not because there was not what it regarded as a consistent and unequivocal practice, which we believe is just blinking at the history which we set forth in our brief, and which the dissenting judge on the Court of Appeals for the District of Columbia set forth with great feeling in his dissenting opinion.</p>
<p>The court below did not reach the constitutional questions that respondent raised, and we don't think these constitutional questions are substantial.</p>
<p>Respondent here is not being punished for speech or association, but for activity, for, as he put it best in his own press release,</p>
<p>"for seeking to disrupt and destroy. "</p>
<!-- william_j_brennan_jr--><p><b>Justice Brennan</b>: What would you call those activities?</p>
<p>Political activities?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: They are political activities and more.</p>
<p>They are certainly activities creating serious danger to the national security.</p>
<!-- william_j_brennan_jr--><p><b>Justice Brennan</b>: Incidentally, in that connection, Mr. Solicitor General, I notice in Footnote 7 of the Court of Appeals' opinion, a footnote at 14a which recites, based on statistics supplied by the Secretary, that in 1955 21 passport applications were refused, and in 1956 ten such applications refused because the applicants were "participants in political affairs" Is there any record as to what the particular participation was in those instances?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: In some instances there are, Mr. Justice Brennan.</p>
<p>In others, there are not.</p>
<p>There was a period when what is perhaps this century's "communist" and last century's syndicalist or anarchist, where passports were denied for reasons of--</p>
<!-- william_j_brennan_jr--><p><b>Justice Brennan</b>: Well, Kent v. Dulles rather--</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --But Kent... that's right.</p>
<!-- william_j_brennan_jr--><p><b>Justice Brennan</b>: --Sort of required at that--</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Kent v. Dulles, and Aptheker, and Dayton, threw all of that out.</p>
<!-- william_j_brennan_jr--><p><b>Justice Brennan</b>: --Well, does this case involve something more, like Kent v. Dulles, or are the areas of restriction similar?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: No, this case involves identifying a covert employee, an undercover employee of our intelligence service, and leaving him to the tender mercies of whatever might happen to a person so identified in a country where we haven't the power to protect him.</p>
<!-- thurgood_marshall--><p><b>Justice Marshall</b>: But he did nothing other than words.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: That's correct.</p>
<p>He did nothing other than words, but these words were as deadly as bullets.</p>
<p>In Kingston, Jamaica, after the coauthor, his coauthor of a book, identified 15 agents, the homes of two of them were attacked violently by armed men, and if words will precipitate that and they're uttered with the knowledge that they will--</p>
<!-- thurgood_marshall--><p><b>Justice Marshall</b>: Well, could he be charged with a crime if he were in the United States and said that?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --He might.</p>
<p>I suppose a holdup man who says, stick 'em up, and maybe doesn't brandish a gun at all--</p>
<!-- thurgood_marshall--><p><b>Justice Marshall</b>: If he doesn't have a gun, I don't know what crime he committed.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Well, I don't know, if he puts a person in fear of his life and extracts his wallet from him... well--</p>
<!-- thurgood_marshall--><p><b>Justice Marshall</b>: I'm not willing to go that far afield.</p>
<p>I'm willing to say, if he talks over here the exact same words he's charged with talking over there, you couldn't do anything to him.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --You might not.</p>
<p>But we are not claiming that he committed a crime that's indictable, that's an indictable offense.</p>
<p>But we're claiming that these are activities that go beyond pure speech.</p>
<p>This is not--</p>
<!-- thurgood_marshall--><p><b>Justice Marshall</b>: But that are not punishable here?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --It may not be punishable, we're not contending that it's punishable here, but we're saying that it creates a serious--</p>
<!-- thurgood_marshall--><p><b>Justice Marshall</b>: Then you have to say that taking his passport is not punishment.</p>
<p>Don't you have to say that?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --It's a form of punishment, but it's not criminal punishment.</p>
<p>It's an implementation of the national security.</p>
<p>If this nation cannot have operatives abroad who can keep it advised of intelligence matters that may affect our security, certainly the safety of every one of us is diminished.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: General McCree, supposing a person right now were to apply for a passport to go to Salvador, and when asked the purpose of his journey, to say, to denounce the United States policy in Salvador in supporting the junta, however one pronounces it in Spanish.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And the Secretary of State says, I just will not issue a passport for that purpose.</p>
<p>Do you think that he can consistently do that in the light of our previous cases?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: I would say, yes, he can.</p>
<p>Because we have to vest these... The President of the United States and the Secretary of State working under him are charged with conducting the foreign policy of the Nation, and the freedom of speech that we enjoy domestically may be different from that that we can exercise in this context.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, Kent v. Dulles involved, did it not, preaching communist doctrine?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: But that's quite different, perhaps--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: I know, but that's why--</p>
<p>--It involved membership in the Communist Party, didn't it?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Well, it was both, as I understand it.</p>
<p>It was membership and policy--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: There's a preaching aspect of it, and there, I was thinking about my brother Rehnquist's hypothetical to you.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Oh, I think--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And their preaching communist doctrine he said you couldn't refuse a passport to go and do that.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Because there was no showing, there was no contention--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And the difference from going to Salvador?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --There was no contention made that that damaged the national security.</p>
<p>Now, if our national security--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: How is the Salvador one involved in this?</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --Well, it just might, because it might be a provocation that would involve us militarily.</p>
<p>For example... and I'm out of the record in answering this... but just recently two Americans have been killed in Salvador.</p>
<p>Apparently they were some kinds of undercover persons working under the cover of a labor organization, and if this person identified them as not being what they appeared to be but as undercover operatives and it resulted in their deaths, it seems to me a rule that would deprive the President of the United States from--</p>
<!-- byron_r_white--><p><b>Justice White</b>: Well, that's something a little different than Justice Rehnquist's.</p>
<p>But even if you couldn't retrieve a passport for the reason Justice Rehnquist suggests, that doesn't cover this case where the threat is to the lives of other American citizens.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: --That's correct, Mr. Justice White.</p>
<p>If I may, I would like to reserve the balance of my time, if there is any.</p>
<p>Thank you.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Very well, Mr. Solicitor General.</p>
<p>Mr. Wulf.</p>
<p>ORAL ARGUMENT OF MELVIN L. WULF, ESQ., ON BEHALF OF THE RESPONDENT</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>I'm sorry Justice Rehnquist had to leave because I did just want to start by specifically answering one factual question.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: He'll be back before you finish your statement.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I just want to answer one question which you asked the Solicitor General that has to do with when Mr. Agee's passport was last renewed.</p>
<p>It was last renewed in 1978, which was after that press release, and after his principal book was published in 1975.</p>
<p>This case involves the constitutional right to travel.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: You say renewed.</p>
<p>Do you also have the data on when it was issued?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I assume it was issued five years previously thereto; I think five years is now the standard period.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, your affidavit in the record says it was issued March 30, '73, and expires on March 29, 1983.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: That is an error.</p>
<p>It was issued in '73.</p>
<p>It expired in '78--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And it's been renewed now until '83?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --And is renewed--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, I'm just reading from your affidavit, that's all.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --It must be a typographical error.</p>
<p>I know that his passport expired, the one that was revoked, expired, was to expire in 1983.</p>
<p>It was issued--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: That's what you say.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Yes.</p>
<p>Oh; I'm sorry.</p>
<p>Yes.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But you say it was issued on March 30, '73?</p>
<p>And do not suggest that it was renewed, but it was?</p>
<p>You said--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: It was renewed in '78; yes.</p>
<p>Because they're only good for five years.</p>
<p>This case does involve the constitutional right to travel.</p>
<p>According to doctrine by this Court in Kent and Zemel, the power to issue passports is a power that ultimately is within the authority of the Congress of the United States, and Congress must authorize either explicitly or implicitly any curtailment on the right to travel.</p>
<p>The Government, of course, concedes that there's no explicit authorization in this case, and the task of this Court is to see whether it can divine from the history presented to it by the Government and by ourselves as well whether there is any implicit authorization which has to be based as the Court held in Kent and Zemel on a substantial and consistent administrative practice.</p>
<p>I would like to just summarize our argument in a nutshell and then treat each of the separate arguments individually.</p>
<p>Our first argument is that Kent itself disposes of this case, because Kent, taken together with its companion case Dayton, in fact was a case which dealt with matters of national security and foreign policy considerations.</p>
<p>It was not merely a case confined to speech and association, as the Government would have the Court see it.</p>
<p>Two, should the Court disagree with our analysis about the extent of Kent, then we can show historically that there is a total absence of any substantial and consistent practice, which is required to find that Congress implicitly authorized the regulation involved in this case.</p>
<p>Both of those arguments are supported by the fact that after Kent was decided by this Court in 1958, the then Administration tried very, very hard, and very, very unsuccessfully to secure legislation which would authorize the very kind of authority which it has exercised in this case against Mr. Agee.</p>
<p>And finally, looking around for what the intention of Congress actually is, we come to the amendments in 1978, substantial amendments in 1978, of Section 211(a), which is the fundamental passport authority, and Section 1185, which is the lineal descendent of all of the wartime national emergency provisions.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: --Mr. Wulf, to what extent do you think that Congress can limit the President's authority to revoke or grant a passport to someone whom he has previously issued it to?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: According to the decision in Kent, he has plenary... Congress has plenary authority.</p>
<p>The authority resides in Congress, it does not reside in the Executive Branch.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: Do you think that if the President appoints an ambassador to Italy and trouble comes up in Italy and the President summons the ambassador home, that the ambassador can simply stay in Italy and keep his passport, saying I've got a right to travel and I'm not going to come home?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Well, he can certainly be deposed and--</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: He wouldn't be ambassador for long, I'm sure, but--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Not at all.</p>
<p>Yes.</p>
<p>I think he can refuse to come home.</p>
<p>In that case he would presumably have a diplomatic passport; he might have to turn that one in.</p>
<p>He'd be entitled to reissuance of a standard passport if he was no longer ambassador.</p>
<p>In 1978, explicitly, Congress expressed what its intentions were, and its intentions there were to withdraw whatever authority the Court had allowed it to exercise in the area of geographical restrictions, in the Zemel case; and secondly, it revoked Section 1185 of the Title VIII, which was the travel control statute, and reversed the purpose of that statute 180 degrees and required, although it still requires that passports be used for entry and exit by citizens of the United States, the purpose is not to allow the Executive Branch to exercise travel control over citizens who hold passports, but to facilitate... and that is explicitly what is in all of the congressional history relating to 1185... to facilitate travel of American citizens because of the now general requirement abroad that travelers present passports upon entry to foreign countries.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: --Which of our prior cases, Mr. Wulf, would you think presented conduct and acts comparable to that of the respondent here?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I think that Kent involved the same kind of considerations that are involved here.</p>
<p>That is to say--</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Disclosure of national security information?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Well, the Kent decision, particularly the Kent dissent; and of course we all remember the history of that period when travel by American communists and communist sympathizers was prohibited, during the '50s.</p>
<p>All of the expressions, all of the explanations about why that was being done had to do with considerations which were identical to the kind of national security and foreign policy concerns expressed by the Government in this case.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Did any of the people involved in any of that litigation get themselves involved in releasing classified information of the United States?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: The party in Dayton v. United States, which was a companion case to Kent, the basis on which his passport was refused at that time, which led to the decision here, was that it was thought that he had something to do... and I quote from the charges against him... something to do with the Rosenberg espionage ring, and that he was at a meeting somewhere in New York where information was prepared for delivery to a foreign nation.</p>
<p>There was no charge--</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Well, that might be suspicion, founded or not founded, but how does that compare with the statements released by Mr. Agee in the London press conference?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Oh, I would think they would be worse, Your Honor.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Worse?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: The statements that Mr. Agee released are expressions, political expressions which are protected under the First Amendment.</p>
<p>There's no First Amendment protection to engage in espionage or sabotage.</p>
<p>I think the Dayton case is worse than the Agee case.</p>
<p>I don't think the Agee case is bad, but I think that in the Government's terms Dayton is worse.</p>
<p>Our brief essentially here today is that given the Government's best case, in its brief, in terms of the historical information which it has provided the Court, that this Court cannot confidently conclude that the Congress has implicitly authorized the power which the Government seeks to exercise here, that the Government's best case leaves it very doubtful, leaves it very ambiguous, leaves it very uncertain, about whether the kind of implicit authorization which is required has been found, will be found in this case.</p>
<p>And that this Court ought not guess about whether there is any such implicit--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, might I ask, Mr. Wulf, the same question I asked of the Solicitor General about that information in Footnote 7 of the Court of Appeals' opinion?</p>
<p>Is that the fact, do you know?</p>
<p>It's at page 14a of the Petition for Cert. It states that 21 passport applications in '55 and ten passport applications in '56 were refused because the applicants were</p>
<p>"participants in political affairs abroad whose activities were deemed harmful to good relations. "</p>
<p>Do you know what those cases are?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --No, I don't know what they are, and neither does the Government, Your Honor, because there's absolutely no explanation about those in the documents where they appear.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, wouldn't that be significant in terms of the issue you're now arguing if that were so?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I think they are insignificant, Your Honor, because there's no explanation about what they mean.</p>
<p>And they're as insignificant as are the other statistics which the Government has provided to the Court, because of the admixture of the kinds of... I'm looking for the... because of the different kinds of categories under which those various passports were revoked, or refused.</p>
<p>And it's in our brief, what is lumped together, there were in 1955 refusal of passports in six cases.</p>
<p>At the same time there were persons whose previous conduct abroad has been such as to bring discredit on the United States and cause difficulty for other Americans, gave bad checks, left unpaid debts, had difficulties with police, et cetera.</p>
<p>There's another category in '56 which refers to--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, I agree with you, Mr. Wulf, that we're not told how many of those 36-odd were bad check, unpaid debt, difficulty with the police, and that sort of thing.</p>
<p>The reason I asked the question was to see if we could find out.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --We can't find out, because they--</p>
<!-- byron_r_white--><p><b>Justice White</b>: But that same statement says, there were numerous other refusals for security reasons, in addition to the ones that might be harmful to relations.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Well, their saying it isn't proof that it exists, Your Honor, and they can't produce the proof because... well, they haven't produced it; perhaps they can but they haven't here, and they have to rely on the record which they presented to the Court here.</p>
<p>The fact is that I think that those statistics are completely useless because of the totally inadequate description of what they were all about.</p>
<p>I mean, if there are 56 such cases, 55 of them could have been for bad checks and one of them might have been for something related to foreign policy and national security.</p>
<p>But I think that this Court can't make a decision based upon that kind of data which is just totally insufficient.</p>
<!-- thurgood_marshall--><p><b>Justice Marshall</b>: Am I disqualified to talk--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I'm sorry?</p>
<!-- thurgood_marshall--><p><b>Justice Marshall</b>: --because I know why one of them was, am I disqualified because I know why one of them was?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: No, we won't disqualify Your Honor.</p>
<!-- thurgood_marshall--><p><b>Justice Marshall</b>: You won't?</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Mr. Wulf, can I ask what your position is with respect to the authority of the Secretary of State to revoke a passport for matters such as writing bad checks, being convicted of crimes, or something of that kind, non-political in context, but is there authority for the Secretary to do it?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I think he doesn't have authority.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: He does not have?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: That's right.</p>
<p>If that was done abroad, if it's not a crime within the United States... it might be, under some statute; I wouldn't want to say conclusively... but if it's according to Kent, there are only two grounds upon which the Executive Branch can refuse to issue passports.</p>
<p>One, whether or not the applicant is a citizen; and two, whether the applicant is trying to escape the foils of the law, as the opinion put it.</p>
<p>It's pretty clear that what they mean is whether the applicant has committed a crime within the United States.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, do you agree that that's a proper basis for revocation of a passport, and if so, what's the authority for that?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: The authority for that is that Kent found that that was--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Did Kent create an authority that did not previously exist?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Kent found the authority when it hadn't been previously looked for.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Where did it find it?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: In history.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: In history, rather than in any written regulation or statute?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Absolutely; absolutely.</p>
<p>Because the only statute is 211(a) which broadly confers the power to issue passports--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I'd sort of like to figure out where the thing started.</p>
<p>I mean, where did the original power revoke for that reason come from?</p>
<p>There must have been a first case, when there would have been no prior history to justify it.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --There were first cases in the 19th century which are described in one or another of the briefs before the Court.</p>
<!-- byron_r_white--><p><b>Justice White</b>: Well, did Kent involve a revocation?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Kent was a refusal.</p>
<p>Frankly, I lump them together, Your Honor.</p>
<!-- byron_r_white--><p><b>Justice White</b>: Well, I know, so you do say that despite the absence of any express power to revoke in the Secretary, the Secretary at least for some reason may revoke a passport?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I wouldn't deny that.</p>
<p>We haven't argued that there's... we haven't argued a distinction between a refusal to issue and a revocation.</p>
<!-- byron_r_white--><p><b>Justice White</b>: And if he can refuse for a reason he can revoke for the same reason?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: We wouldn't contest that; no.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, are you suggesting now, Mr. Wulf, as in Kent, that Mr. Agee's activities have First Amendment protection?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Yes.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: Well, then you reject--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: But I go beyond that, of course, because I think Kent is broader than merely a First Amendment case.</p>
<p>We believe that Kent and Dayton, taken together, involve the same kind of national security-foreign relations concerns which are--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: --I know, but what was the constitutional protection for whatever the activities were that were involved in Kent, wasn't it in every instance the First Amendment?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Yes.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: You reject the Court of Appeals' distinction, then?</p>
<p>That although there may be authority not to issue, there is no authority to revoke?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: We don't argue the distinction about that, Your Honor.</p>
<!-- lewis_f_powell_jr--><p><b>Justice Powell</b>: Mr. Wulf, is it your position that the First Amendment protects everything that Mr. Agee is said to have stated in his press release in London in 1974, including the exposing of CIA agents abroad?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Yes, sir.</p>
<p>It is our position that that is--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: There is no First Amendment in that there's no written constitution in England.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Oh, it's protected with respect to American law.</p>
<!-- lewis_f_powell_jr--><p><b>Justice Powell</b>: Of course.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Yes.</p>
<!-- lewis_f_powell_jr--><p><b>Justice Powell</b>: But even if exposing the agents, as the Solicitor General has argued, resulted in their death, is that a proper exercise of the First Amendment?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: There is no claim at all here that his revelations have resulted in anybody's death.</p>
<p>In fact, there's a specific disclaimer in one of the affidavits that's in the record that nothing that he has said has resulted in the death or injury of any member of the CIA.</p>
<p>And that's at 116a of the Petition for Cert.--</p>
<!-- lewis_f_powell_jr--><p><b>Justice Powell</b>: I'm not suggesting that there is proof of an agent dying as a result of Mr. Agee's disclosures; I just don't know.</p>
<p>But I would think the occupation is sufficiently hazardous without having one's name publicly revealed.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Well, as you presumably know, Your Honor, there has been attempts continually being made for the last year or two in Congress to adopt a statute which would make it a crime to identify CIA and other covert action--</p>
<!-- lewis_f_powell_jr--><p><b>Justice Powell</b>: It's very difficult to draw that sort of legislation.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --And the Congress has been unsuccessful in doing it, and no bill has been acted on, no statute has been adopted.</p>
<!-- lewis_f_powell_jr--><p><b>Justice Powell</b>: But if it adopted--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Until then, if such a statute should be adopted, I dare say that the question of constitutionality will be here soon enough.</p>
<p>In the meantime, I believe that that kind of identification is indeed protected by the First Amendment.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: --Well, Mr. Wulf, suppose that--</p>
<!-- lewis_f_powell_jr--><p><b>Justice Powell</b>: --Even if the statute is otherwise valid?</p>
<p>Not void for vagueness?</p>
<p>The First Amendment protects a right to disclose publicly secret agents of the United States wherever they may be?</p>
<p>That's your position?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: In general that is my position.</p>
<p>In particular, I would say that Mr. Agee, like Mr. Snepp, would be subject to the same terms of the secrecy agreement, to the same terms of the secrecy agreement that he executed.</p>
<p>And in fact, he us now subject to that agreement.</p>
<p>There is an injunction outstanding against him, which he is complying with.</p>
<p>So whatever... as of the past few months.</p>
<p>So whatever may have been the case before then, he is now bound by that injunction.</p>
<!-- byron_r_white--><p><b>Justice White</b>: Mr. Wulf, suppose then that Mr. Agee or somebody else applies for a passport and he says, I know I'm subject to a secrecy agreement but I want to go England and reveal the names of people that I am forbidden to reveal here, and if I go to England I can do it and probably get away with it.</p>
<p>But I fully intend to breach my contract by going abroad.</p>
<p>And the Secretary says, well, awfully sorry, you're subject to the agreement and you're not going to get a passport.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I would think that that's not the remedy.</p>
<p>The remedy is not to deprive him of a passport.</p>
<p>The remedy is to proceed on a contempt citation against him under the injunction.</p>
<!-- byron_r_white--><p><b>Justice White</b>: Once he's in England.</p>
<p>Once he's in England.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: When he comes back, if he comes back.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, how can actions taken in England violate the law of the United States?</p>
<p>Suppose he killed somebody at the press conference, could he be prosecuted over here?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: No.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: That's a violation of the law of Great Britain.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Yes.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Mr. Wulf, I don't think you've answered Mr. Justice Stewart or Justice White.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Well, the answer is that if he has so conducted himself that he is not... has committed a crime which is only a crime by the law of a foreign state, he can't be, he cannot be prosecuted here.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, suppose it's not a crime by the law of the foreign state?</p>
<p>I think that's Justice Stewart's question.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: If it's a crime by the law of the United States, he can be prosecuted here, of course.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Even though the conduct's committed abroad, where it's not a crime?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: It might in some circumstances.</p>
<p>I think there are some extraterritorial problems--</p>
<!-- byron_r_white--><p><b>Justice White</b>: Well, if it were, if Congress did pass the law you referred to and made it a crime to do that, and a person applied for a passport and the Secretary says, what are you... somehow the Secretary knew and he freely conceded that he was going to go abroad and break that law, could he refuse a passport?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --I said I do not believe so, and I believe his remedy is in the criminal law, or if there's an injunction, for contempt.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Get an injunction before he gets on the plane.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Perhaps they can get an injunction to enforce the injunction against him prohibiting him from revealing information.</p>
<p>But apart from that, I believe that there is no authority to withhold his passport.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: And you think that the in personam restraint of an American court injunction would follow him in London or Beirut or wherever?</p>
<p>An in Personam--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: It might well, it might well.</p>
<p>I could see that kind of an injunction which is breached abroad being basis for a contempt citation here.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: --Mr. Wulf, putting to one side--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: That wouldn't shock me very much.</p>
<p>I must say, though, that this concentration on the facts of this particular case, I beg your leave, doesn't have anything to do really with the issue which is before the Court.</p>
<p>I mean, I can understand why the Government has concentrated on the facts in this case in trying to make--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: --Mr. Wulf, let's put these facts to one side for a moment and put to one side cases in which there are preexisting contracts restraints or violations of law; just the conduct of an American citizen while abroad.</p>
<p>Does the United States have any control over what a citizen may do other than by trying to restrict his right to travel by revoking his passport?</p>
<p>If it has any.</p>
<p>Maybe it has none, which is essentially your position--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --I think it has none unless there is an extraterritorial crime has been committed.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: --But if it has, other than extraterritorial crime, which is a rather... there are instances, of course, but other than that, if it is to impose any meaningful control over what our citizens abroad may do that may impact on national security or anything else, it must be through this device, must it not?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Yes, it must be.</p>
<p>But the issue today is whether Congress declares that it will be.</p>
<p>I mean, that's the issue today.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, I know, but precisely, the issue is whether the regulation issued pursuant to the statute that Congress did enact was within the power of the President as delegated to the Secretary of State under that statute.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: No, I disagree.</p>
<p>The issue is, whether there was any authority for the regulation at all.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: The regulation purports to have been issued pursuant to the statute which says, it gives the power initially to the President, and he's redelegated it to the Secretary of State.</p>
<!-- byron_r_white--><p><b>Justice White</b>: Well, Mr. Wulf, you would like to put Mr. Agee in the same category as any other citizen, and treat him like any other citizen.</p>
<p>I would think you might win with any other citizen and still lose about Mr. Agee.</p>
<p>The logic would be because he is subject to an agreement which you agree binds him.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Well, I don't think that that has any bearing at all, Your Honor.</p>
<!-- byron_r_white--><p><b>Justice White</b>: I know you don't but he isn't, in that regard he's not like just any other citizen.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: For purposes of travel I believe he is like any other citizen, and I don't see how--</p>
<!-- byron_r_white--><p><b>Justice White</b>: Well, other citizens aren't subject to the agreement, though.</p>
<p>At least you have to concede that.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --I concede that, but I also would argue that that agreement is subject to independent enforcement, which has no bearing on the question, the basic question here about congressional authorization.</p>
<p>I mean, obviously, I would like you all to forget about the facts of the Agee case, and I think that you have to and--</p>
<!-- byron_r_white--><p><b>Justice White</b>: I suppose you'd take--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --in terms of what the issue is before you.</p>
<!-- byron_r_white--><p><b>Justice White</b>: --I suppose you'd take the same position if the secrecy agreement said, nor will I travel abroad to do so?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I might take a different position, but it doesn't say that, of course, so I don't have to take any position.</p>
<!-- william_h_rehnquist--><p><b>Justice Rehnquist</b>: I take it all of your answer exclude "in time of declared war"?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: We don't deny that in times of declared war there can be restrictions, limitations imposed on travel which would not be unconstitutional, and of course Congress has adopted such legislation in 1918, 1941, and related legislation in 1952.</p>
<p>But none of that is in effect now, of course, including the 1952 legislation, since that national emergency is no longer in effect.</p>
<p>There is no national emergency.</p>
<p>Our second argument, of course, goes to the question whether there is any proof presented, historical proof presented to you by the Government which would persuade you that there is the necessary consistent history of administrative practice which is necessary to find authorization.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: How many times in the past have there been conduct that is directly comparable to this by an American passport holder?</p>
<p>You were talking about a history, so, if the events never occurred, there wouldn't be any history.</p>
<p>Are there others?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Well, the Government described seven in its brief, extending from 1906 to 1970, and then, of course, it also lumps together those other--</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Twenty-odd.</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Well, there were 62 in their opening brief.</p>
<p>It turns out to be 100 in their reply brief, of those nondescript cases out of the statistics.</p>
<p>Specifically they refer to seven cases in the last 75 years which they claim as the basis for their support of an administrative practice.</p>
<p>They're in the brief and it was only one of them, in 1970, which was in fact under the same regulation.</p>
<p>The others weren't under any regulation at all, as a matter of fact.</p>
<p>It was... they were just under the claimed discretion of the Secretary of State.</p>
<p>As I said in opening, I think that these examples of administrative practice presented to the Court by the Government are far too ambiguous, far too uncertain a basis upon which this Court ought to rest its judgment that they will find implicit authorization.</p>
<p>I think that that--</p>
<!-- byron_r_white--><p><b>Justice White</b>: Implicit authorization to do what?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Implicit authorization for the regulation applied here against Mr. Agee.</p>
<!-- byron_r_white--><p><b>Justice White</b>: You mean, to revoke for these reasons?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: To refuse passports--</p>
<!-- byron_r_white--><p><b>Justice White</b>: Because you agree that there is a power to revoke?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: --Yes.</p>
<p>Yes.</p>
<!-- byron_r_white--><p><b>Justice White</b>: For the right reasons?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Quite; quite right.</p>
<!-- byron_r_white--><p><b>Justice White</b>: And there's a historical practice of revoking--</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Yes.</p>
<!-- byron_r_white--><p><b>Justice White</b>: --But not for the reasons claimed?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: Precisely; yes.</p>
<p>And with that... and the Court ought not make that decision on the basis of the evidence here.</p>
<p>That decision ought to be, the Court ought to require, in light of the fact that this is a constitutional right, that Congress exclusively say what its intentions are with respect to this kind of power which is asserted in the regulation before the Court.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, anyway, Mr. Wulf, you would argue that if there were explicit statutory authorization to revoke for this kind of conduct, the statute to that extent was unconstitutional because this kind of conduct has First Amendment protection?</p>
<!-- melvin_l_wulf--><p><b>Mr. Wulf</b>: I would make that argument, but then we would deal squarely with the constitutionality in First Amendment terms of the authority which was concededly granted to the Executive Branch.</p>
<p>But today we don't believe that that authority exists.</p>
<p>I think that the 1978 amendments really settle this case.</p>
<p>There Congress revoked what authority this Court had given to the Government in the Zemel case regarding geographical restrictions, which certainly shows an intent to withdraw whatever authority the Executive Branch had with respect to national security and foreign policy considerations.</p>
<p>We believe that the decision below should be affirmed.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Mr. Solicitor General, do you have any?</p>
<p>ORAL ARGUMENT OF WADE H. McCREE, JR., ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>If I have 60 seconds left I'd like to call the Court's attention to two matters.</p>
<p>First, in response to counsel's claim about the effect and the intent of the 1978 amendments, I would refer you to page 47 of our brief, where we set forth the Senate report which makes it clear, and I read:</p>
<p>"The Committee recognizes clearly that the passport authority should not be restricted in any way which would limit the President's ability to control the departure of United States citizens to foreign countries when such travel is inconsistent with a greater Government interest. "</p>
<p>The other matter to which I would like to direct the Court's attention, if I may, is on this seven-page reply memorandum that we filed to the Petition for Certiorari, where we set forth the colloquy conducted by the court and counsel in the district court, where counsel under very careful questioning concedes that for the purpose of the determination of the validity of this regulation, he concedes that his client was causing or likely to cause serious damage to the national security.</p>
<p>And I suggest, therefore, that he admits that he is fully within the ambit of this regulation which means that this Court needn't decide the question whether his conduct was within the regulation.</p>
<p>Of course, it leaves the constitutional question as well as the statutory authorization question to be determined.</p>
<p>And with that, we would submit our case on the briefs.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Thank you, gentlemen, the case is submitted.</p>
<!-- wade_h_mccree_jr--><p><b>Mr. McCree</b>: Thank you.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: The honorable court is now adjourned until Monday next at 10:00.</p>
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The OYEZ Project </div>
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Wed, 18 Feb 2009 06:13:16 +000053817 at http://www.oyez.orgKleindienst v. Mandel - Oral Argumenthttp://www.oyez.org/cases/1970-1979/1971/1971_71_16/argument
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Case:&nbsp;</div>
<a href="/cases/1970-1979/1971/1971_71_16">Kleindienst v. Mandel</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Daniel M. Friedman</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: We'll hear arguments next in number 71-16, United States against Mandel.</p>
<p>Mr. Friedman.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: Mr. Chief Justice and may it please the Court.</p>
<p>Now this is a direct appeal from a judgment of a three-judge District Court in the Eastern district of New York, holding unconstitutional a provision of the Immigration and Nationality Act of 1952.</p>
<p>It excludes from the United States aliens who advocate, or whose writings advocate, or teach the doctrines of world communism.</p>
<p>The statute involved is set forth at pages 3 and 4 of our brief.</p>
<p>And it is composed as far as this litigation is concerned of two sections.</p>
<p>The first is Section 212 (a), which says except as otherwise provided the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the Untied States.</p>
<p>Then subdivision 28 says aliens would any time have been members of the following classes.</p>
<p>I will now just combine for simplicity sub-paragraphs V and G of that.</p>
<p>What it says is that aliens who advocate, or whose writings advocate or teach the economic, international and governmental doctrines of world communism.</p>
<p>Now at the top of the page 4, is another provision which is referred to as the waiver provision.</p>
<p>And what it says is that in the event of an alien who is otherwise ineligible for admission under the prior sections of which 28 is one, that alien maybe temporarily admitted to the United Sates after approval by the Attorney General of a recommendation either by the Secretary of State, or of the counselor office involved that the alien be temporarily admitted in the discretion of the Attorney General, so that for this provision to be operative, we need two things.</p>
<p>First, there has to be a recommendation for a way but by either the counselor official involved or the secretary of state, and secondly, the Attorney General must grant the waiver in his discretion.</p>
<p>The appellee, Dr. Mandel is a Belgian citizen, a resident of Brussels who is a prominent Marxist economist.</p>
<p>He is not a member of the Communist Party, but he describes himself as a revolutionary Marxist.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: He was a what kind of a Marxist?</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: A revolutionary.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I thought you said common market at first.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: No, Communist Party.</p>
<p>No, he's not interested in the common market.</p>
<p>The District Court described him as an orthodox Marxist of the Trotskyist school.</p>
<p>Apparently he does not agree with some of the views of Russian communism, but he is saying and his writings indicate he is urging and seeking to develop a revolution under which the workers will take over control.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Is he interested in academic life or a political life?</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: Academic life primarily, and he has written a book called, Marxist Economic, that is considered a well-known work and indeed his works are sometimes studied in college.</p>
<p>And we think that under the statute there is no question that he comes within the definition of someone who advocates the doctrines of world communism.</p>
<p>Now in 1962 and 1968, Dr. Mandel came to this country pursuant to waivers it had been granted.</p>
<p>In the first case in 1962 he came here as a journalist and in the second year he came here to give a series of lectures.</p>
<p>In the fall of 1969, he again sought a visa in Brussels for the purpose of giving lectures here and attending various meetings in the academic community.</p>
<p>The first application which he filed, he filed two of them in 1969, the application in that case to request for a waiver, -- the question of a waiver was denied by the State Department in Washington.</p>
<p>Then later on in November of 1969, the counsel and the State Department recommended to the Attorney General that a waiver be granted to Dr. Mandel.</p>
<p>They explained that on the earlier occasion in 1969, they had declined to recommend a waiver because they said that he engaged in activities beyond the stated purpose of his trip when he came to this country in 1968.</p>
<p>However, the State Department said they subsequently learned, that when he made his previous trip to the United States, Dr. Mandel may not have been aware of the fact.</p>
<p>That he came here pursuant to a waiver of the ineligibility requirement.</p>
<p>And therefore may not have been aware of the limitations imposed upon his trip to this country.</p>
<p>And they also pointed out, that Dr. Mandel had given assurances that on this time he will conform to his stated itinerary and purposes.</p>
<p>The Attorney General acting through the Immigration and Naturalization Service, to whom he has delegated his authority under this statute denied the waiver.</p>
<p>And the reason is most clearly set forth, I think in the paragraph of the bottom of 68 in the left, which is the record, which is a letter from the associate commission of operations of the Immigration and Naturalization Service to Mr. Boudin, Dr. Mandel's counsel.</p>
<p>And what this letter says is on his last visit in 1968 --.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Excuse me, Mr. Friedman, on the 58 of the Appendix.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: 68, I am sorry, 68 of the Appendix, Mr. Chief Justice, at the bottom of that page and last paragraph.</p>
<p>On his last visit in 1968, Mr. Mandel's entry was authorized for a series of academic engagements in the United States.</p>
<p>His activities while here were much reported to the press and went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded him to express his views in this country.</p>
<p>Now in March of 1970, the complaint in this case was filed.</p>
<p>The plaintiffs Dr. Mandel and sixth American University professors.</p>
<p>The general allegation of the complaint was that the statutory provision directing the exclusion of the aliens who advocated the doctrine of world communism, was unconstitutional and violation of the First and Fifth Amendments and that the waiver provision was similarly unconstitutional.</p>
<p>And the theory however is rather interesting because there is no claim in this case that the plaintiffs are asserting any rights on behalf of Dr. Mandel.</p>
<p>They claim their asserting their First Amendment rights to hear to Mandel and to discuss it.</p>
<p>As they put it in their complaint that Dr. Mandel's exclusion denied then, the American Professors, the right to hear Mandel in University and other public forums in this country, and to exercise their freedom of academic inquiry by engaging Mandel in an open and face to face exchange of information and opinions.</p>
<p>And they now state in their brief at page 14, they are suing only to enforce their rights and assert none on the part of the invited alien.</p>
<p>A divided three-judge court held the statute unconstitutional both on its face and as applied, ended a declaratory judgment to that effect.</p>
<p>And also a preliminary injunction enjoining the Attorney General from refusing to admit Dr. Mandel on a temporarily on a visa.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Mr. Friedman do you read the judgment of the three-judge court as turning exclusively unconstitutional ground.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: I do Mr. Justice, I do Mr. Justice, that's the whole theory of it and as far as we can tell the Court to did not decide any of the other attacks which the plaintiffs made upon the statute.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: What was the question?</p>
<p>I didn't hear it.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: The question is whether I read the judgment of the District Court as turning solely on constitutional grounds and my answer is I do.</p>
<p>I think the opinion makes it quite clear.</p>
<p>The Court recognized that although Dr. Mandel himself had no right to enter this country, it concluded that American citizens here have a First Amendment right to hear him and to exchange views with him.</p>
<p>And they said this First Amendment right and the plaintiffs must prevail over the Government's right to exclude him because, the government was excluding him not because he was actually engaging in a dangerous activity, but merely because of the views that he advocated.</p>
<p>They then went on to say that as far as the wavier was concerned that where the exclusion of the alien impinges on rights protected by the First Amendment, you can't let that as admission turned on the discretionary action of the Attorney General and then seemingly a little inconsistent with that went on and said, but in any event since we hold that the government has no right to exclude him at all, it's irrelevant whether or not, the discretion was properly exercised.</p>
<p>Now in the district --</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Under your theory, could a born professor who planned to come here to teach Mandel's text, that book you called, what's it, The Marxist Economic Theory?</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: Yes.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Would he be excluded?</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: I think it, iI am not certain about it, let me just -- if I made just look at the statute again.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: He is coming here to teach this theory in Mandel's book.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: I suppose it could be under subsection (j) because it refers to who knowingly having their possession for the purpose of circulation, publication, distribution, or display any written or printed matter.</p>
<p>I take it if he had a copy of Mandel's book in his possession, he was going to urge the students to read that he could be excluded, but that of course is not -- let me make it very clear, this case, because --</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: I understand.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: Yes I think, I think --</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: How far you would go because the Court is not pretty far to let the academic community stand alone in what wants to teach.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: I think the academic community of course has the right as to what it wants to teach and there is nothing.</p>
<p>There is nothing at all in this situation that in anyway inhibits any of the plaintiffs from teaching any of Dr. Mandel's theories, from discussing any of Mandel's theories, his works are freely available here.</p>
<p>The only question in this case is whether they have a constitutional right to enforce, to force the government to admit Dr. Mandel, so they can talk to him face to face, so that they can discuss things with him.</p>
<p>The record shows in this case that on one occasion after he was denied admission on audience of 1200 people in Town Hall in New York City heard by a tape recording, the text of the speech he would have been planning to give there.</p>
<p>So his views are freely available to everyone in this country.</p>
<p>The only question is whether or not the teachers have a right to have face to face confrontations with a man, that Congress is said is ineligible for admission.</p>
<p>Now as the case was presented to the District Court, the major challenge to this statute was to the constitutionality of the exclusion of this class of alien.</p>
<p>But when the case comes to this court the appellees have rather dramatically shifted their argument.</p>
<p>As I read their brief they no longer are attempting to defend the decision of the District Court.</p>
<p>They now argue not that the statute is constitutional but that the refusal of the Attorney General to grant a waiver was in progress.</p>
<p>As I understand the argument it is that because of the fact that these people want to hear and talk to this man.</p>
<p>And because of the fact that they say all he is doing is advocating and they say, they have some First Amendment right to see him face to face.</p>
<p>Therefore it must have been in the public interest for the Attorney General to have admitted this man and therefore his failure to do so was erroneous.</p>
<p>Now this --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Let me be sure what has happened to the argument that statute is unconstitutional because it rests under viewable authority and the Attorney General.</p>
<p>Well that's abandoned?</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: No, that argument has not been abandoned.</p>
<p>The argument that has been abandoned is that the statutes on its face.</p>
<p>The ban on the admission of aliens who advocate the doctrines of world communism.</p>
<p>But that is on its face invalid.</p>
<p>That argument as I understand has been abandoned in this Court.</p>
<p>I think they do challenge, they do challenge the contention, the effectiveness of the wavier but even there as I understand it, it's not so much because it vests un-reviewable discretion on the Attorney General as rather that the Attorney General improperly exercises discretion in this case.</p>
<p>Mr. Boudin will explain little further but that's as I read his brief.</p>
<p>And this narrower argument is one that was not made in the District Court, one that we think the District Court has very clearly not decided.</p>
<p>And one which we think under the circumstances is not appropriately open to me made in this Court.</p>
<p>If in fact this is a consideration it's one we think that should be made on the District Court if the case goes back on remand.</p>
<p>Now the congressional exclusion of varies categories of aliens has a long history.</p>
<p>It goes back almost a 100 years.</p>
<p>That began in 1875 with the exclusion of two categories, convicts and prostitutes.</p>
<p>In 1903, the categories of excludable aliens were expanded to include among other anarchists and people who believe in or advocate the overthrow of the government by force or violence.</p>
<p>Progressively, the categories of excludable aliens were expanded and in 1950, in the Internal Security Act of that year, was a provision, comparable to the provision in the present act providing for the exclusion of aliens who advocated the doctrines of world communism.</p>
<p>This expansion was based on congressional findings.</p>
<p>In the 1950 Act as to the menace of world communism, as to the dangers, that members of the communist movement would come into this country and surreptitiously subvert our institutions.</p>
<p>Now, for almost as long as Congress has excluded categories of aliens of various types.</p>
<p>This Court has recognized the broad power of Congress to do so.</p>
<p>Since the Chinese Exclusion Case, in 1889, this Court has repeatedly recognized and stressed the broad authority of Congress to exclude aliens.</p>
<p>In 1904 almost 70 years ago in the case called Turner, that the Court upheld that how to exclude an anarchist under the statute as it was then written, even though it was willing to assume for purposes of decision that the anarchist basic attitude was primarily philosophical rather than actually planning to destroy the government.</p>
<p>As the justice Frankfurter stated for the Court in his opinion in Galvan against Press some years ago, when we are dealing with the power to exclude aliens we had not merely a page of history put a whole volume.</p>
<p>Now the right to exclude aliens is inherent, in the sovereignty of any nations.</p>
<p>It's necessary both to protect the domestic security of the nation and also to aided in the conduct of foreign relations.</p>
<p>So the contention comes down to is this basically in this case and I might add in passing that appellees themselves in this court and the District Court recognized that Mandel as such has no right to enter.</p>
<p>So the contention basically comes down to is this.</p>
<p>Even though Dr. Mandel himself had no right to enter.</p>
<p>The fact that the appellees want to hear him and want to meet with him, gives them a right to compel his admission.</p>
<p>Though, as they have greater rights to compel his admission to this country, than he has.</p>
<p>We know of no case that has held or even suggested that this kind of a claim, the right of people, the claim that the people want to hear someone talk, overwrites the power, plenary power of congress to exclude aliens.</p>
<p>Now the people in this country admittedly have a First Amendment right to listen to speaking that is going on, they do normally think have a right to overrule the settled power of the Congress and force the admission of an alien who belongs to a category that Congress has said is not be admitted.</p>
<p>The reason we think this statute does not impinge any First Amendment rights of the appellees, is basically it relates not to speech but to action.</p>
<p>It doesn't bar an alien from speaking, it bars the alien from coming in.</p>
<p>Now of course, obviously if he can't come in, he can't speak here.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well he could send tape recordings.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: He can send tape recordings, he could send books, his books are freely brought in here.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: I thought your statement was a little too broad.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: Oh, I am sorry Mr. Chief Justice.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: That he --</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: He cannot speak in person here, he cannot speak in person.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: They could tape, well I ask you, could they tape a video tape in Brussels and send it over in air or all the networks.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: I would see no reason -- I would see no reason, why not.</p>
<p>I would see no reason, why not.</p>
<p>But this collateral consequence, this collateral consequence of his exclusion that is the fact that as a result of that people here cannot meet and speak with him.</p>
<p>We don't think that turns this statute into a law of Congress abridging the freedom of speech, within the meaning of the First Amendment.</p>
<p>This Court had very similar argument presented to what in the case of Zemel against Rusk which upheld the authority of the Secretary of State to denied passports to Cuba.</p>
<p>In that case, Mr. Zemel said that he wanted to satisfy his curiosity about the State of Affairs in Cuba and that his visit would make him a better informed citizen.</p>
<p>Now this court said that the denial of a passport to Mr. Zemel to visit Cuba invaded no First Amendment rights of Mr. Zemel, and the reason we think applies equally to this case.</p>
<p>This is what the Court said.</p>
<p>To the extent that the secretary's refusal to validate passports for Cuba act as an inhibition.</p>
<p>That is an inhibition on obtaining information about Cuba and would be unrealistic to assume that it does not, it is an inhibition of action.</p>
<p>There are few restrictions on action which could not be closed by ingenious argument in regard of decreased data flow.</p>
<p>The right to speak and publish does not carry whether the unrestrained right to gather information.</p>
<p>And we think the same principle applies in this case, the right to speak freely between themselves, the right perhaps to engage in face to face dialog with speakers in this country does not give them the right to insist that anyone they want to hear can be brought into this country.</p>
<p>So as far as the holding of the District Court that the statute is unconstitutional to ban, we think the basic error of the District Court as I think is demonstrated in the dissenting opinion was its failure to recognize the broad authority of Congress in this country to exclude aliens of any class.</p>
<p>Now let me come to the other aspect of the case.</p>
<p>The refusal of the Attorney General to waive Dr. Mandel's ineligibility.</p>
<p>Now of course, most of the arguments that I have made previously apply in this situation too.</p>
<p>It seems to us, if the appellees have no First Amendment right to bring them into here and it seems to me equally they have no First Amendment right to complain that the Attorney General declined to waive his ineligibility.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: His, at least this difference, however, the cases that which you have been citing us of all of that cases in which Congress in its wisdom or lack of it has decided to exclude certain kinds of people who want to come to this country.</p>
<p>In this case, Congress has said ultimately we are just going to leave it up to an officer of the Executive Department, that doesn't -- that raise something else.</p>
<p>I mean you would no longer in support for that position can rely so much on Congress's power, Congress is just advocated its power.</p>
<p>We just have the Attorney General.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: I think not mistrust Mr. Justice, Congress has broadly prohibited admission of --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, except in fact and I have seen the figures and the briefs and the papers here.</p>
<p>The fact is that the lion's share of these people are let in because the Attorney General doesn't allow --</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: If I may add one qualification Mr. Justice, the lion's share of those as to whom an affirmative recommendation was made by the counsel.</p>
<p>We don't know if the counsel --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, here it was made by the Secretary of the State, was it not?</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: Yeah.</p>
<p>But if there is -- if the cases where no recommendation is made then it never gets to --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Yes, but we are talking about this category where it's made by the Counsel or the Secretary of the State.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: But if I may suggest Mr. Justice, that the cases I have cited in addition to recognizing the broad discretion of the Congress to exclude aliens have also correspondingly recognized that the congress may delegate to administrative officers discretion to decide whether to admit or exclude a particular alien.</p>
<p>It's not just that Congress can exclude, the Congress can delegate.</p>
<p>I would like to refer the court to a case decided some years ago called Jay against Boyd which we have discussed in our brief citied in our brief at Page 7.</p>
<p>That's Page 7 of our reply brief.</p>
<p>Page 7 of our -- and that's the little thin thing.</p>
<p>But I will expand a little bit on the discussion of Jay against Boyd that we give in our brief.</p>
<p>That was a statute very close to this statute.</p>
<p>It provided that the “The Attorney General may, in his discretion, virtually the same language that we have here suspend deportation of an alien who would otherwise be deported.</p>
<p>The statute setup various such conditions which had to be met before an alien was eligible for deportation.”</p>
<p>The question in the case was whether an alien who met those statutory standards could nevertheless be denied suspension of deportation by the Attorney General without a hearing and on the basis of confidential information known only to the Attorney General.</p>
<p>Now this Court held that the Attorney General could do that.</p>
<p>And the reason the Court gave was that Congress in the statute have left it to the unfettered discretion as it described it of the Attorney General to decide a particular case, whether or not to suspend deportation.</p>
<p>It pointed out that the Congress in its statute did not provide standards for determining who among qualified applicants for admission should receive the ultimate relief.</p>
<p>That determination is left to the sound discretion of the Attorney General.</p>
<p>The statute says that as to qualified deportable aliens, the Attorney General may in his discretion suspend deportation.</p>
<p>It does not restrict the considerations which maybe relied upon or the procedure by which the discretion should be exercised.</p>
<p>Grant thereof is manifestly, not a matter of right under any circumstances, but rather in all cases a matter of grace.</p>
<p>And we think that the language applies, principally applies equally to this case.</p>
<p>Congress has not specified any standards by which the Attorney General is to decide in his discretion whether or not to grant away for ineligibility.</p>
<p>Congress obviously left it to the Attorney General to consider these matters taking account of all of the myriads of facts that enter into this judgment.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Mr. Friedman, if we follow this language in Jay of unfettered discretion.</p>
<p>What do we hear in this case for?</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: We are on this case, because Mr. Justice, the District Court --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: If it's unfettered, why court should be involved with it at all?</p>
<p>I should assume.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: But because the district court has struck down.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: That's your position that the District Court could do nothing.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: Well, our position Mr. Justice.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Or that was unfettered means?</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: That's right.</p>
<p>This is a matter within the discretion of the Attorney General.</p>
<p>Now let me say --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: But can Congress give unfettered discretion.</p>
<!-- Daniel_M_Friedman--><p><b>Mr. Daniel M. Friedman</b>: This court has said that Mr. Justice in Jay against Boyd.</p>
<p>I think Congress can in many of decisions of this Court recognized that in dealing with aliens, dealing with aliens, what Congress has complete authority to exclude them.</p>
<p>Congress, we think, does have the power to say whether you are going to permit an alien of the excludable class to be admitted.</p>
<p>The Congress can leave that to the discretion of the Attorney General, and he is free to take in account all the pertinent considerations.</p>
<p>It seems to us that's quite clearly what Congress has done in this statute.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Thank you Mr. Friedman.</p>
<p>Mr. Boudin.</p>
<p>Argument of Leonard B. Boudin</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Mr. Chief Justice may it please the court.</p>
<p>We will begin with two points.</p>
<p>One suggested out of questioning of Mr. Justice Marshall and the other the result of the reference Jay against Boyd and to unfettered discretion.</p>
<p>First, this is of course, a case, a suit by American citizens, American university professors and “Dr. Mandel was in a sense made a plaintiff because he is symbolic of a problem.”</p>
<p>The real parties of interest we've conceded from the beginning are only the American university professors and the institutions which they represent.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well, are they asserting his rights?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: They are asserting their rights Your Honor and not his.</p>
<p>Now the second aspect is the reference to Jay against Boyd and to unfettered discretion.</p>
<p>I know of no case whether it deals with aliens or whether it deals with any other aspect of American law where unfettered discretion has been upheld by this court.</p>
<p>In Jay against Boyd the problem that was posed there was whether or not when the Attorney General states that considerations of national security forbid him to state the reason.</p>
<p>The court will accept the good faith statement of the Attorney General and we would too, if we didn't have a reason stated here that we could challenge.</p>
<p>And in Hintopoulos where Mr. Justice Harlan did recognize that the suspension of deportation was a matter of race, he added in the concluding paragraph that the facts in that case show that Attorney General had not acted capriciously or arbitrarily and we don't think that in any case, and particularly one involving the First Amendment.</p>
<p>This court would stand for the proposition that if we had a fact situation which we think we can establish here, where there is arbitrary and capricious denial of First Amendment rights, then such action by the Government would be upheld.</p>
<p>Now, the Government has pointed out that there seems to a shift of position here.</p>
<p>I may say there maybe a shift of emphasis, but our position has been consistent.</p>
<p>In the court below on behalf of the America plaintiffs, as I say saving their First Amendment right, we took the position very much similar to the one which I happen to have taken in Kent against Dulles, many years before, arguing that the statutes on their face as applied were unconstitutional.</p>
<p>Court will recall that it took a more limited view when the case finally came up and said that the statute was not intended to apply, because of the First Amendment rights that were involved to the situation there namely the denial of passports for political reasons.</p>
<p>But we also took in this case as Your Honors will see from our complaint, a direct attack upon the Attorney General's action as capricious and as without any foundation.</p>
<p>We did not give up either point when we opposed the appeal here.</p>
<p>What we did was attempt to support the decision on a narrower ground following the standard practice in this court or seeking a narrow ground if it could be done in declaring a statute unconstitutional.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: The District Court didn't pass on your alternative though?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: No, the District Court didn't pass on our alternatives, because the Government really didn't give it the chance to.</p>
<p>It wasn't our fault, it was the Government that said through an affidavit filed by Assistant US Attorney Baker, this matter is un-revealable.</p>
<p>We decline to give any reason to the District Court.</p>
<p>Had the Government given a reason to the District Court, as it now it does here, I think the District Court would have then said the action taken was un-revealable.</p>
<p>But our rights should not be fought for two years later after the litigation began, because they decided to stand on a fundamental principle and not offer any reasons.</p>
<p>Now, let me point out the shift of positions taken by the Government, not because they are inconsistent, but because as we have done in changes of emphasis, the Government has had a perfect right to do it, but they do bear a relationship, because on each one they pose a proposition upon which we take issue.</p>
<p>In the District Court as I indicated before the Government said it had a absolute -- The Attorney General had an absolute, an un-revealable exercise of discretion.</p>
<p>I will address myself to that shortly.</p>
<p>In the main brief here, bearing in mind what the District Court had done in holding the statute not on its face, but as applied to this particular academic situation invalid.</p>
<p>As applied here, the Government took the basic position that the exclusion and deportation cases were exercised of the sovereign power of the Federal Government, the Congress.</p>
<p>Now, if we had that statute before, and if we were not able to give as we think we now have been able to give an alternative constitutional interpretation to the statute and shift the emphasis to the Attorney General's violations of the congressional intent, which I should try to establish and shift the statute to a position which the Attorney General has acted arbitrarily regardless of statutory intent in denying the American citizens access to Dr. Mandel here for these academic discussions.</p>
<p>Now let's say that even a statute of this kind for the reasons indicated by the court below and in the O'Brian case would be invalid.</p>
<p>I would then argue that there is no substantial legitimate governmental interest in excluding a person of Dr. Mandel's economic and philosophical views.</p>
<p>We are not dealing here remember with (a)27 category.</p>
<p>We are not dealing which are the people who are absolutely forbidden.</p>
<p>We are not dealing with the (a)29 category which deals with people who violate laws.</p>
<p>We are dealing with (a)27 D and G.</p>
<p>We aren't dealing with the other (a)27 categories of those people whom congress considered more activist.</p>
<p>Then we present the former member of Communist Party.</p>
<p>I would then argue that this category of persons should not be prevented from meeting with American academicians, universities where no substantial interest of the Government is shown and under the O'Brien case involving the destruction of draft card as the Court remember.</p>
<p>The court did set forth certain tests, and one of them was that there must be a predominating government interest, the otherwise the effect -- the court raised the question of whether the effect was direct or incidental to First Amendment rights.</p>
<p>Then came the question of the least restricted means.</p>
<p>The test referred to in Shelton, but used in other words namely, whether it's essential to a governmental interest in O'Brien.</p>
<p>Now, when the Government filed its brief, its reply brief here which I recited and probably some members of the court had not yet received.</p>
<p>The Government then went back, not possibly as a result of our briefs, and I am not complaining, went back to the original assertion which it had made in the District Court of an unlimited and un-reviewable exercise of executive discretion.</p>
<p>Except it did one more thing as a matter of precaution which it didn't do in the District Court, it gave a reason.</p>
<p>The reason they flagrant abuse of Dr. Mandel's 1968 trip which I think the court will realize is superficial and not agreed to by the State Department and persisted in by the government is really all I have to do is say it's a case of bureaucratic, lower bureaucratic stubbornness.</p>
<p>And, as I say bureaucratic stubbornness, because there is no foundation for the action, for the argument now made by the Attorney General that would happen in 1968, namely the fact that at a cocktail party that Dr. Mandel attended in which an event occurred at the end in which he had nothing to do namely the selling the postage for French students.</p>
<p>This is basically the flagrant abuse that is relied on by the Attorney General in this case.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: How do you compare what the government assets here with the power of the Attorney General to suspend deportation.</p>
<p>The challenge --</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: I think they are they are quite similar powers.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Has that not been supported?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: I think it has been supported, but in no case has been supported where the court has found.</p>
<p>I refer to Jay against Boyd and Hintopoulos where there has been a) arbitrary action on the party of Attorney General which we think the court will easily find here, and b) where the First Amendment rights of American citizens are involved.</p>
<p>That's one of the reasons why we began in this case by conceding that the alien's rights are not involved, they don't have the First Amendment rights.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Mr. Boudin in Jay, the court did refer to the power of Attorney General to suspend the petitioner's unfettered discretion.</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: I think it it did Your Honor, but I think it found that as a practical matter there was no arbitrary action on the part of the Attorney General.</p>
<p>In other words, the reasons it gave for withholding information were considered sufficient.</p>
<p>And there is always in a whole line of cases beginning with Chinese Exclusion all the way down to Harisiades and so forth, a statement of the very broad powers of Congress.</p>
<p>The question however is, whether there is in any area an unlimited executive power, something we address ourselves to in our brief, or even an unlimited congressional power.</p>
<p>I would wonder for example, although I had intended to turn to this determining in analyzing the executive's action; whether a congressional statute which said that a person who was not in an activist class, but is a celebrated economic, the economist in lots of school.</p>
<p>If Congress had passed a statute saying that the entry into the United States for a brief visit of such a person for the purpose of attending an academic meeting with Professor Richard Falk of Princeton would be forbidden, because Professor Falk has written as one of the editors of American Journal of International Law.</p>
<p>Articles against our opposition, opposition in the Vietnam War.</p>
<p>Is it conceivable that such a statute despite the plenary power would not be stricken down and recognizes an violation of First Amendment rights of professor Falk and I don't want to go into examples, but I would rather move into the questions which I am next addressing myself to.</p>
<p>That is the statute itself and is it acceptable of constitutional construction which would not give the vast powers to the Attorney General suggested and which in fact challenges those vast powers.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Mr. Boudin before you do that, aren't there a number of acts by which the Congress has vested in administrative agencies un-reviewable power to make certain determinations?</p>
<p>I am thinking of the International Claims Commission for one.</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: I think Mr. Chief Justice, I would distinguish any case and I am not to be familiar with that particular problem.</p>
<p>Although, I know I have been involved in some litigation which may touch on that.</p>
<p>Those don't involve the First Amendment rights of America.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Your point links First Amendment with any effort to grant un-reviewable power?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Exactly, in other words in --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: In this case you link it to the First Amendment rights of Americans to listen?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Precisely, I am relying specifically upon three lines of decisions which this court has handed down.</p>
<p>The first is the recognition in Shelton against Tucker and Mr. Justice Frankfurter's concurring opinion and Mr. Justice Harlan in Sweezy.</p>
<p>The special role of the University.</p>
<p>I am warned against being a leadist (ph) here by my colleagues, but the fact is that the University is very important.</p>
<p>I include schools as well, in terms of our democratic system.</p>
<p>The second principle, I rely upon is a line of decisions which range -- I can't go back much further for the moment in De Jonge against Oregon in going up to New York Times against Sullivan and of course the Red Lion case on which I rely specifically.</p>
<p>And that line relates to what maybe a cliché, but if so it's a fundamental one.</p>
<p>Namely, the relationship of the First Amendment to the sovereignty of the people.</p>
<p>As opposed to the governmental sovereignty, sovereign rights which he here claims.</p>
<p>And the third line suggested, I think a few minutes ago, is a line of the right to know which began at least within my memory in Martin against Struthers and moved into the Lamont case which again involved I thought a very great powerful power of the government to refuse the entry of communist material.</p>
<p>But which the court held referred specifically to Mr. Justice Brennan's concurring opinion I believe there, that we were dealing again, not with the rights of the communist who were sending literature, but we were dealing with the rights of the receiver and I distinguish this case from the cases which involved foreign monies coming here or monies going to abroad or Schilling against Rogers the Trading with the Enemy Act cases.</p>
<p>I am dealing exclusively with the question of the First Amendment rights of Americans.</p>
<p>Now, what the Government says in response is that it has a right to be arbitrary.</p>
<p>The executive says, because it says Congress has given it this power.</p>
<p>Before I turn again to the congressional power, let me say that I think another principle, the court has laid down in Stovall and in (Inaudible) and in Red Lion is that the government cannot be arbitrary and I don't have before me, the precise quotation where Mr. Justice White made some reference to the limitations upon the bureaucratic irresponsibility.</p>
<p>It's a very rough paraphrase to us.</p>
<p>The question however is that Congress intends to give this power to the Attorney General.</p>
<p>Now, the Government has said that the statute is read in the way indicated.</p>
<p>Let me add to the construction of the statue that there are two kinds of persons involved in ineligibility, a political ineligibility primarily.</p>
<p>The first is a category on which Congress has passed the complete ban; that's the (a)28 it's (a)27, the (a)28 and the Section F where the President has the power to declare people inadmissible.</p>
<p>The second this is (a)27 category that we are dealing here.</p>
<p>And particularly, the (a)27 D and G.</p>
<p>Now, the question is did Congress intend to give unlimited power to the Attorney General or is there some standard particularly in the light of the First Amendment situation to which we are directing ourselves here, namely the American academic situation.</p>
<p>Are there any limitations at all?</p>
<p>Well, they can be found not in the statutory language, but they can be found in two or three reports of Congress cited by us and by the Government in our briefs which Your Honors will see.</p>
<p>In which the public interest, admittedly a difficult concept, but I am sure applied very often, if the field is not relating to the First Amendment, in which Congress stated that it was in the public interest that the Attorney General exercised his discretionary power.</p>
<p>The alternative was also humanity which I am not suggesting to involve here in main reasons.</p>
<p>Now in addition to that the statistics which I think Mr. Justice Stewart pointed out are really significant, because in 1969, for example, the critical year here, at least for the purpose of this case about 5,000 recommendations were made by American Council abroad for the most part to the Department of Justice.</p>
<p>And that very important administrative practice showed that only nine applications were denied by the Attorney General and our guess, no basis and the Government doesn't have the facts that those nine were probably not cases; probably not cases in which the Secretary of State himself or the persons important to the bureau security council affairs.</p>
<p>So it was important that Dr. Mandel come here and probably cases where only council is involved and probably cases where you had political activist school.</p>
<p>Now I have jumped to the legal analysis here and to the administrative implementation urging again that the court take a narrow view of the powers given here in order to avoid constitutional problem, but I don't want to miss the critical facts, which as usual one misses when he meets the Government's argument on the law.</p>
<p>The critical facts are that the start here is not from Mandel who wanted to come here.</p>
<p>He celebrated and love to live in Europe and to receive the respect of other universities.</p>
<p>Dr. Mandel who came here in 1968 and delivered lectures before 30 American Universities including Princeton, was invited in 1969 to debate Professor Galbraith of Harvard at Stanford University with the administration's approval.</p>
<p>And then followed six other invitations -- and many other invitations of which he accepted six, and where the Americans wanted him, not he who wanted come here particularly.</p>
<p>Now, the applications were denied and it turns out if I could short-circuit it, the applications were denied because of this assumption that somehow rather he had technically violated the conditions of his coming in earlier.</p>
<p>But the American Council and the State Department recognized that this was an error on their part.</p>
<p>They had not told him when they gave him the visas that he was politically ineligible and therefore conditions with entry of acts.</p>
<p>He had assumed that he was eligible as he had the American academicians.</p>
<p>And it was only because he came in not as an eligible, but one whose eligibility was weighed that these conditions which are really very technical and hardly an important state interest were suggested by the American Council for the first time, as a reason for excluding Dr. Mandel and not making a recommendations after his stay.</p>
<p>I was then communicated with, not by Dr. Mandel, I am not a Marxist, we are obviously friends.</p>
<p>I was communicated by the American academic community which said we want this man here and we want to debate with him.</p>
<p>We want to engage --</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Mr. Boudin in view of what you say as the tripartite line of cases you rely on, I take it you would feel case were not as strong if instead of being college professors who wanted him here, it was just some of his relatives or some friends in this case?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Oh, I can clear.</p>
<p>I think it is very important that the First Amendment rights of the academicians involved here, I don't question that at all and I wouldn't just here --.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Do you suggest those rights are greater for academic community people and for others?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: I remember Your Honor -- Mr. Chief Justice, I warned myself about leaders and I am not sure.</p>
<p>I do think however that the importance of education, whether at schools or universities as such that the court will treat that aspect very often, how you should make the inception, will treat that aspect differently than it we will treat for example Dr. Mandel's desire to deliver a talk to an unlimited American audience who had not invited him to come here.</p>
<p>And in that sense, I think there are gradations, as we saw in the last several case there, gradations of rights of access to buildings for the labor reasons and gradations of First Amendment rights, at least each case must be considered on its own.</p>
<p>Now, the Attorney General here in his action we think therefore in the light of what I have said is a very sparse congressional history but a very satisfactory administrative practice.</p>
<p>We think is acted arbitrarily and in violation of the First Amendment as well as in violation of a public interest concept and is because Your Honors will recall reading the brief, what I have not said that the Department of State in Washington; when I approached them said representing the academicians, I want a meeting between the University professors and you, writing to Mr. Elliot Richardson then on the Secretary of State, I had known of his interest, the freedom of speech from his articles in the Harvard Law Review many years ago on the Dennis case.</p>
<p>I thought he was a right man to write to.</p>
<p>And the response was that we do recognize that this may have been an error, a misunderstanding between Dr. Mandel and ourselves.</p>
<p>We do recognize the importance of the academic community and its interest in the thing, and finally came the recommendation of the secretary of the state.</p>
<p>Yes, in the interest of freedom of speech and freedom of opinion Dr. Mandel should be admitted and the answer of the Attorney General was, no, and as Your Honor has seen me tracing it, no for no reason; now no for a reason.</p>
<p>Now all of these cases with respect to reviewability that is suggested by the Attorney General.</p>
<p>On that cases in which the Court has denied justiciability, that cases in which the Court has weighed the factors, war power O'Brien and (Inaudible).</p>
<p>One for the individual, the other against the individual.</p>
<p>Foreign policies Zemel and that was very real.</p>
<p>I argued Zemel; I radically lost, but I argued Zemel here and I urged the First Amendment rights on the part of Zemel being, even though the matter was phrased in terms of its individual curiosity to see what would happen in Cuba.</p>
<p>But they were very strong foreign policy reasons urged by the Government before this court, evaluated by this court and upheld by the court.</p>
<p>Is this tactical violation to being at a cocktail party be equivalent of our relations with Cuba and (Inaudible) in Cuba.</p>
<p>In the field of National security again Harisiades and all of these cases received very careful analysis in the court and the court that divided of course in many of those cases.</p>
<p>Even in the field of immigration as I indicated before, the Government is quite right in citing this Mr. Justice Powell's one line statement of that fact that it's a matter of race, but quite I will call delinquent in error in failing to give his concluding line that they did not regard the considerations involved there as being arbitrary and unreasonable and capricious and so we now come down to the conclusion of our problem here; a) no reason given in the court below, b) no foundation in fact suggested and the use of the word 'flagrant abuse' is really a hyperbole which I regret to say that Government adopted from their earlier letter sent by one of the immigration officials.</p>
<p>We have here a situation where the opinion of the Secretary of State which certainly indicates that foreign relations are not affected.</p>
<p>Because if Dr. Mandel for example had been, let us say at the moment, a Soviet Marxist, and Soviets were not allowing our economist to come in.</p>
<p>Or even if we had a position of opposition to the Soviet Government which we wanted to demonstrate, then this court would have to weigh the question, whether the First Amendment rights of the academicians in the universities overbalance this or it doesn't, the state department's decision.</p>
<p>And I suspect it would come out against the universities in such a case.</p>
<p>But we have here a statement that on the history I have given you, in other words attacking the statute and not just as written, but as applied.</p>
<p>We are attacking and we attacked in our complaint the action of the Attorney General is frivolous and is unreasonable and without foundation.</p>
<p>This is real frivolity.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Mr. Boudin, if we follow your theory of this statute that you are reading of this statute, anytime would it not then result that anytime 100 people signed a petition and said they wanted hear from some person generally falling in the class of excludable aliens they would have to be admitted?</p>
<p>If 100 people here said they wanted to hear him?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: I don't think Your Honor.</p>
<p>I think each case is going to depend in the end and somewhat you had said earlier on one of the occasion on its own facts.</p>
<p>We have here a case of scholarly discussion at American universities recognized by those universities important for the education of those people.</p>
<p>We don't have ad hoc group saying either sympathetic, but not sympathetic to Dr. Mandel, we would like to hear you.</p>
<p>We have the most eminent professors and the most eminent universities who feel that it's important as I think we all do, important that; that there be a counter discussion, the discussion of issues here.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Mr. Boudin do you think, the government's case would be stronger or weaker if the Attorney General had said I am refusing entry, because I don't like his views just like the statute says.</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Then I think I would be faced with an attack on the statute and I would have a harder burden, but I would attack the statute.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Is it more arbitrary to give no reason than to a give a reason that I don't like your views?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: If the Attorney General had said I am following the statute strictly -- well, I don't think the Attorney General could do that.</p>
<p>The Attorney General in each case is exercising discretion.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, I think he is.</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: I think the statement -- the problem you are posing Mr. Justice is one in which we are faced with where the statute says, there is an absolute ban; and that would place a burden on me and I would have to meet it is for court --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, the statute does authorize exclusion based on views?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Yes, it does and I would challenge that, but I don't think that I have to challenge that.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, if the Attorney General says, based on views, I am going to keep you out.</p>
<p>That's what I am --?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: I think that would be improper, because Congress intended the Attorney General exercised the discretion with respect to the views also.</p>
<p>Congress didn't say --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: So was it constitutional to give him the discretion, but it's unconstitutional or it's important not to exercise?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: It depends on how it's exercised.</p>
<p>I think the Attorney General in each one of these cases does exercise discretion, I would assume that so in good faith.</p>
<p>Now, I think all of our situation as I think --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I take it that you don't think you have to -- I take it you think you can concede that the statute is valid on his face and still win.</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: But only purposes of winning.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, I understand that.</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Well, for the other purpose Your Honor.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: That means that every exercise of discretion by an Attorney General under the statute is subject to judicial review?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: No, I would not say that.</p>
<p>Well, the question of what is subject judicial review and when the courts will overrule the Attorney General is another problem almost everything is subject to judicial review in this country, but tremendous deference is obviously paid to the views of Congress and even to the Attorney General.</p>
<p>I would say that given a situation where the Attorney General is given a reason, and sometimes giving a reason could be worse than not giving a reason.</p>
<p>And given a reason which this court can say, is absolutely absurd, it's frivolous.</p>
<p>And if the Attorney General for example had given a reason that I had suggest, there another one, that Professor (Inaudible) would recall him is a rather conservative at least by Dr. Mandel's standards, professor of economics had written books criticizing our American Economic Policy, and he wanted Dr. Mandel in his university in the New School of Social Research.</p>
<p>He wanted Dr. Mandel to come here.</p>
<p>It would be frivolous and it would be unreasonable, it would be in violation of the First Amendment rights to deny his right to access to Dr. Mandel.</p>
<p>I don't think we have to take a lot of whole statute, and particularly we will need to do so.</p>
<p>I urged in the court below.</p>
<p>I don't think we have to do so, if we can say a; either that the Attorney General's position is arbitrary and unreasonable one, and that this court have never upheld a decision which it said was unreasonable and arbitrary by the executive branch, or , we say Congress intended there be some standards here, and that one of the things Congress did not intend is that, because of what I call simply bureaucratic stubbornness, the rights of the American academic community should be rejected.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Isn't it also true this court has never upset a decision to exclude aliens previously?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: I think Your Honor is correct, that the Court has never excluded aliens.</p>
<p>But I will say that in no case, in the history of this Court including the Turner case, the famous amicus case argued by Clarence Darrow and Edgar Lee Masters in this Court.</p>
<p>In no case has it been the First Amendment rights of the American citizens that was alleged.</p>
<p>They were never the plaintiffs, poor Mr. Turner.</p>
<p>I guess it was Turner, they confuse with that Turner too.</p>
<p>Poor Mr. Turner was a man who was asserting as an alien his First Amendment rights.</p>
<p>Well, it's a long time, it's pretty late.</p>
<p>I would like to re-argue Turner against Williams, but it's too late, and if Clarence Darrow failed, I would certainly fail.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Thank you Mr. Boudin, thank you Mr. Friedman.</p>
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Thu, 23 Aug 2012 18:20:14 +000062674 at http://www.oyez.orgBryson v. United States - Oral Argumenthttp://www.oyez.org/cases/1960-1969/1969/1969_35/argument
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Case:&nbsp;</div>
<a href="/cases/1960-1969/1969/1969_35">Bryson v. United States</a> </div>
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Related Transcript:&nbsp;</div>
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Transcript:&nbsp;</div>
<p>Argument of Richard Gladstein</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Number 35, Gladstein against -- excuse me, Bryson against the United States.</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Mr. Chief Justice and may it please --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: If you’ll just wait one moment Mr. Gladstein until counsel gets clear.</p>
<p>Now, you may proceed.</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Thank you, Your Honor.</p>
<p>May it please the Court.</p>
<p>This case brings into question, the constitutionality of Section 9 (h) of the Taft-Hartley Act of 1947.</p>
<p>That Act provided in substance that before a labor union could resort to the facilities of the National Labor Relations Board.</p>
<p>Each of its officers most annually signed in filing non-Communist affidavit.</p>
<p>The constitutionality of that statute was upheld in 1950 in the case of American Communications Association against Douds.</p>
<p>The chief opinion was written by Chief Justice Vinson in which two other members of the court concurred, Justices Frankfurter and Jackson wrote separate opinions, concurring in part and dissenting in part.</p>
<p>Mr. Justice Black dissented on a number of grounds including explicitly an expression of his view of Section 9 (h) was a bill of attainder and therefore violated the Article I Section 9 of the Constitution.</p>
<p>Congress, it appears was not satisfied with its experience under Section 9 (h) and 12 years after its passage, nine years after this Court was persuaded to sustain it.</p>
<p>The Congress have repealed that law and replaced it with Section 504 of the Labor Management Relations Act.</p>
<p>That Section provided that it was a crime for a man simultaneously to hold union office and to be a member of the Communist Party.</p>
<p>That statute was held unconstitutional by this Court in United States against Archie Brown, 1965 in an opinion written by the Chief Justice, four other members of the Court concurring in the opinion on the expressed ground of Section 504 was unconstitutional bill of attainder.</p>
<p>One of the questions certified in this case is whether in the comparative light of American Communications Association versus doubts and United States versus Brown, Section 9 (h) is constitutional.</p>
<p>Let me say a few words about the background of this case in order to put the other two certified questions in perspective.</p>
<p>Petitioner here was one time the president of a small maritime labor union numbering some 3,000 members who served on vessels plying in and out of Pacific Coast Port in the Steward’s Department of those ships.</p>
<p>In 1951, he signed and filed the affidavit as required -- that was required at the time under Taft-Hartley law.</p>
<p>The union was and had been for some time engaged in the bitter jurisdictional dispute which ultimately led to the dissolution of the organization itself.</p>
<p>Now, the affidavit that he filed was a printed form.</p>
<p>But the Labor Board supplied and it recited three basic things.</p>
<p>It recited that the files at the time he signed did not then support any organization that advocated the overthrow of the Government by force, violation or other unconstitutional or illegal means.</p>
<p>It provided second that he said he was then not a member of the Communist Party specifically naming the Communist Party in the second portion.</p>
<p>It provided third, that he was not then affiliate for the Communist Party.</p>
<p>In 1954, almost three yeas after the filing of the 1951 affidavit although I should state that in 1952 Bryson filed the affidavit.</p>
<p>He did the same in 1953 and again in 1954 if my memory served me correctly, even after he was indicted on the 1951 affidavit.</p>
<p>He was charged in the indictment with three counts of violation, all three of the portions that I have mentioned</p>
<p>.Prior to the trial, the Government dismissed the count that charged him of supporting an organization that advocated the overthrow of the Government.</p>
<p>He went to trial on the counts concerning membership and concerning affiliation.</p>
<p>The jury returned the verdict holding or I should say that this was brought under the false statement statute which it set forth in our brief and in the petition.</p>
<p>Jury returned the verdict holding that when he swore that he was not been a member of the Communist Party he was not falsely swearing.</p>
<p>On the other hand, it returned the verdict holding that he did violate the law when he swore that he was not then affiliated for the Communist Party.</p>
<p>Bryson was sentence to five years in prison and a fine of $10,000 which was the maximum.</p>
<p>And in addition, the trial judge provided expressly that he could be subject to further imprisonment in the event that he failed to pay the fine.</p>
<p>He served nearly two years of his term and then was paroled.</p>
<p>And in the intervening years he has managed to pay $2,000 of the $10,000 fine but the there is a balance of $8,000.</p>
<p>Shortly before we filed a petition in the District Court that commenced the proceedings that are now here, the Government noticed the taking of Bryson’s deposition of the original criminal proceeding and did take his -- the position seeking assets for the purpose of enforcing the collection of the $8,000 balance.</p>
<p>And thereafter, the Government filed a civil action in the Federal District Court in San Francisco seeking judgment for the $8,000.</p>
<p>A week or two after that, Bryson’s petition was filed with the District Court seeking a writ of error coram nobis or relief under the other applicable post-conviction statutes.</p>
<p>One of the basic grounds upon which that relief was sought was the allegation that under United States versus Brown, the constitutional basis of Section 9 (h) had been eroded along with other decisions that it was constitutionally infirmed, that it should be controlled by the decision of this Court in United States against Brown and therefore that petition of original conviction had been unconstitutionally obtained.</p>
<p>The District Judge granted petition in all respects except not granting the prayer for a return of the $2,000 that Bryson has paid to the Government on his fine.</p>
<p>The Government took an appeal to the Court of Appeals Ninth Circuit and that court in a per curiam decision reversed holding that Bryson was precluded for bringing his petition by reason of a decision of this Court in Dennis versus the United States.</p>
<p>That case was a case in which this Court declined to review a challenge of constitutionality against Section 9 (h) upon the ground for the petitions in that case were shown to have been engaged in a conspiracy to deceive and to the defraud the Government and therefore that they had lost standing.</p>
<p>The Court of Appeals holding that Dennis presented an insuperable obstacle to us declined the test on the other questions and reversed.</p>
<p>The other two questions presented and certified here then are: One, whether the petitioner is precluded by reason of this Court’s decision in Dennis from attacking the constitutionality of 9 (h).</p>
<p>The other is whether the petitioner qualifies regardless of Dennis upon the ground that it’s inapplicable in as much as this is a post-conviction proceeding and under the all writs section or under the other Section providing for such relief, he would qualify for this relief.</p>
<!-- unk--><p><b> Unknown Speaker</b>: When you talk about the constitutionality of 9 (h) it’s really whether 9 (h) wasn’t absolute.</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Yes, I --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Is that no longer unquote?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: I know.</p>
<p>I can see that.</p>
<p>Yes, Your Honor.</p>
<p>However, the vitality of it still affects Bryson and as hope to argue also affects to its detriment to the bill of attainder provision in our Constitution.</p>
<p>Now, let me say something about the petitioner of the evidence here.</p>
<p>Because I suppose in the last analysis, this Court is not going to look nearly at forms as the Government invites it to do and say well, in Dennis there was a conspiracy to defraud and Bryson’s case the jury found that he lied about whether or not he was affiliated with the Communist Party and therefore they are on a par, this is the Government’s argument.</p>
<p>I would suppose that if Dennis lays down a rule, the Court created by which the Court will determine in its own discretion whether or not a particular person is entitled to be heard has standing to be heard.</p>
<p>One must look at the character of the particular petitioner in so far at least as the record and the evidence would seem to show.</p>
<p>Now in petitioner’s case, the facts are these.</p>
<p>There’s no question that for a period of ten years between 1937 and 1947, he was a member of the Communist Party.</p>
<p>He was an officer of that party.</p>
<p>He was an officer under what was called the Waterfront Section Level in San Francisco and he was an officer on a state level, state committee.</p>
<p>There was no suggestion in this record that Bryson never tried to concede the fact that his membership or holding office in the communist party when he was a member of it.</p>
<p>Now in 1947, he terminated his associations and there is no evidence.</p>
<p>There was no evidence of the trial to sustain any charge that there was an active relationship between him and the party thereafter.</p>
<p>The evidence upon which he was convicted not of membership but of association of affiliation summarize by the Government in its brief, and I assume that they have called from it as much as there is and this is one of the matters to it that comes on pages 5 and 6 of the Government’s brief.</p>
<p>First, he said that in 1949, at an open union convention, he -- I quote what they say, “premised -- he refused to see that delegate to a union conversion premised on the delegate’s failure to accept an opportunity to join the Communist Party.”</p>
<p>So not only was that two years before he filed the affidavit in this case.</p>
<p>But I mentioned that this is the type of evidence on which the affiliation count was based.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But is it not after he now says that he terminated his membership?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: There was no announcement.</p>
<p>There was a cessation of all relationship, all active relationship --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: In 1947?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: In 1947, yes sir.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: This event that you’ve just described under the Government’s brief two years later?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: This and two or three other statements attributed to him.</p>
<p>Yes, one in 1949 and several in 1951.</p>
<p>One of which as the Government correctly points out was two months after he had filed his affidavit in 1951.</p>
<p>He then is supposed to use -- it was testified that he said in the course of an argument between him and one of the men who was forming a dual union, a rival union within the organization.</p>
<p>He -- this man testified that Bryson said to him in the course of an angry exchange.</p>
<p>“If you are referring to me, I’m still a Communist and proud of it.”</p>
<p>There is another piece of testimony that was given by another person who in the course of -- who was expelled from the union or was in the process of being expelled.</p>
<p>There was an argument about whether or not Bryson was discriminating against him or ordering him to be discriminated against in regard of getting union jobs.</p>
<p>And the man testified that what you have to do to get a job around here, to be a party member of something of that kind and he said that might help and in reply to another question after Bryson said when he was accused, “are you still a member?”</p>
<p>He said, “yes and I’m proud of it.”</p>
<p>That’s the evidence.</p>
<p>Now, the District Court told the jury what, based on the record, what’s the kind of evidence was that existed when Bryson was a member of the party and he told the jury that they should take him to consideration of whether or not he held office or official position on the Communist Party whether he have ever attended and participated communist party meetings.</p>
<p>Whether or not he took instruction from communist party leaders, whether he participated in distributing literature, whether he solicited members for the party, whether or not he cooperated closely with and worked for there benefit and so on.</p>
<p>There was evidence that during the period of executive membership, of his membership between 1937 and 1947, there was evidence that these were the activities in which he engaged.</p>
<p>There was no evidence I might say that he ever advocated there was ever present when they was advocated or that he ever runs to it in whatever portion of the Communist Party he was associated with.</p>
<p>That there was forbidden doctrine or policy advocating the further or that he himself believed in the overthrow of the Government of United States by force surveillance and of course there was no evidence in the case itself offered by the Government.</p>
<p>To establish what the teachings of the Communist Party were, what their doctrines were, what their policies were, what their objects were?</p>
<p>The case went to the jury on the sole question of whether nor he was a member or affiliated with the Communist Party without any evidence to indicate.</p>
<p>Either he understood it to be based on his associations or what the party itself stood for in fact from the viewpoint of the Government.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well, aren’t those arguments that were addressed to the Court from this case was tried?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: All of the arguments that are offered now were addressed to the courtroom when the case was tried.</p>
<p>That is we addressed these arguments on appeal to the Court of Appeals, the Court of Appeals rejected the arguments.</p>
<p>This Court did not grant a position for certiorari.</p>
<p>We saw twice first after the original conviction was upheld and I should say that in the petition for rehearing that we filed with the Court of Appeals calling their attention of the fact that in their first decision, we thought they were establishing de novo law.</p>
<p>They reiterated and they said I’ve copied on the sentence from their opinion which is referred to in our brief as well as in the Government’s.</p>
<p>They answer this by saying that although it was true that there was no evidence in the case of active affiliation, it didn’t have to be any.</p>
<p>They said affiliation and this is the quote, “Affiliation is a relationship that can exist even when not manifested by activity.”</p>
<p>As to the argument that we advanced that had to be some showing that the communist party stood for either a calling, political strikes which was the purpose of Section 9 (h) according to the legislative history Congress wanted to inhibit the threat that political strikes might be called in the labor movements.</p>
<p>There was no evidence of anything of that sort either as to Bryson or as party but specifically as to Bryson.</p>
<p>Never had he advocated or suggested or anything of that sort, although he was being found and in fact guilty because Congress assumed that anybody found to have been affiliated with the Communist Party was necessarily presenting threat to the country that he would throw the country into political strikes.</p>
<p>The Court of Appeals answered that argument by saying that the requirement of adherence to Communist Party purposes was covered by the instruction to the jury that said in effect affiliation is a very difficult concept to define, I tell you in essence that its everything but membership been named only and suggested that it is comparable to the relationship between a man and a woman who are not married.</p>
<p>There was no instruction to the jury advising that affiliation could be found only if there was some evidence that Bryson adhered to some forbidden doctrine or that he advance some policy of believing some policy.</p>
<p>Whether it be the overthrow of the Government by violence or the calling of political strikes.</p>
<p>Now, this was the evidence against the man and nothing else.</p>
<p>He did not take the stand.</p>
<p>We’ve tried to show in our brief why.</p>
<p>It was the practice then and it may still be that in cases of this kind or any kind perhaps where a person has been a member of the Communist Party.</p>
<p>It is uniformly the practice of the prosecutor to inquire on cross-examination for the names of other persons who were in the party at the time that the witness was.</p>
<p>It was clear at the time and we set forth in detail the reasons that if he were asked questions of that kind and if he declined to become an informer, the person whose he had known long years ago in the Communist Party that he would be sentence to a jail term for contempt of court by the trial judge and of course that would take place on the presence of the jury and in he had any chance of becoming acquitted he would lose it with a thing like that happening as well as gaining a jail-term.</p>
<p>But there’s some things to some man that are even more important than the risk of spending a term of years in prison and one of them as a matter of point.</p>
<p>Bryson chose not to testify in order to avoid being placed in the dilemma of having to become either an informer or showing disrespect for the court by declining to answer questions that he would be ordered to answer.</p>
<p>In the absence of Bryson’s testimony because he couldn’t under those circumstances, he was not a free agent to get up and either deny those statements that he claim had not been made that were attributed or if he made some of them to explain the context to them which they were made so that the jury could know what he as doing, what he was saying in the absence of his own ability to testify.</p>
<p>In the presence of no evidence by the prosecution at all concerning association of activities, association of times or any kind with the party, we did what we considered the next best thing.</p>
<p>Fourteen witnesses, reputable people from various walks of the community were called and testified that he have to enjoy an excellent reputation for truth, honesty, and integrity.</p>
<p>His record of having sailed on the seas for many, many years and being subject to the United States Coast Guard Regulations of course was a fact he had never been arrested on any charge either a charge of violating a regulation or for that matter a violation of any law.</p>
<p>We also did this --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I have a little trouble understanding Mr. Gladstein, what the relevance of all these is to the issues now here before the court, after all the jury did convict him.</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Yes, well --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Under instructions that have been explicitly approved by this Court as I understand it of violating of being affiliated with the Communist Party at the time that he said he swore under oath that he was not so affiliated?</p>
<p>That’s a finding that was appealed.</p>
<p>That’s the finding.</p>
<p>That’s water over the dam.</p>
<p>He was convicted.</p>
<p>What questions as to why he might have not testified in that trial or what he’s motivations had been or of interest but I don’t see what relevance they have to the issues now here before this Court in this present case.</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: I’m sorry I failed to make myself sufficiently clear.</p>
<p>It is because [Voice Overlap].</p>
<p>Yes, thank you very much.</p>
<p>It’s because the Governments realize on the decision in Dennis to constitute a barrier to Bryson having standing in this case to be heard.</p>
<p>That I considered important for the Court.</p>
<p>I know I can’t attack the finding of guilt and I’m not doing that.</p>
<p>I’m not seeking that.</p>
<p>There’s no, nothing like that has being done.</p>
<p>But I would think that it’s relevant to the exercise of discretion if that’s what it’s involved if Dennis is a relevant decision to consider here.</p>
<p>That will be important to consider what the record was, whatever the jury found.</p>
<p>What the record was concerning Bryson so as to determine whether he compares with or contrasts with the defendants of the Dennis case.</p>
<p>And I wanted to -- one more thing concerning what happened there and that was this.</p>
<p>We called as a witness for the defense the agent of the Federal Bureau of Investigation who was in charge of the prosecution against the Bryson, and he testified that under cover informants and agents of the FBI were and have been throughout this period before and after 1947 within this group that Bryson at one time had been a member of.</p>
<p>That no -- none of this informants, none of these agents testified and nobody came forward to testify against Bryson.</p>
<p>Now, I realize that’s consistent with a policy decision by the FBI that it did not want for reasons of its own which it certainly has a right to make.</p>
<p>He did not want to reveal the identity of someone who was in that Section but its also consistent with the assertion that Bryson has steadfastly made from the beginning and has never deviated from that he was innocent, that he was neither a member nor affiliated with the Communist Party at any time after 1947.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But Mr. Gladstein isn’t that as Justice Stewart has suggested that the issue that’s long since settled and disposed of.</p>
<p>You have --</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: I’ll turn away from that.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: -- you have used most of your time and you haven’t yet suggested any --</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: I’m sorry.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: -- reasons why for example United States against Kapp doesn’t apply if we have to overrule Douds we’d have to overrule Kapp also, wouldn’t we?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: I’m sorry.</p>
<p>No, I think that the basic distinction between those cases and this is that those are cases that deal with money transaction.</p>
<p>We are talking here about a statute that involves the political liberties of the individual.</p>
<p>We are talking about rights of the caliber that the First Amendment protects rights that are embraced within the provision that prohibits the passing.</p>
<p>Absolutely prohibits the passing of bills of attainder.</p>
<p>I do not think that this Court’s decisions can possibly equate cases like the Kapp, those decisions which we treat in our brief at all with what this Court again and again has said to be rights that are enshrined.</p>
<p>I didn’t realize that I was taking up so much time and I’m sorry about that.</p>
<p>But I’d better make my points rather fast.</p>
<p>This case I think is controlled by Brown, United States against Brown.</p>
<p>The statute as we took pains to show in our brief by calling from the Government’s brief in Brown.</p>
<p>There the Government argued that 9 (h) and 504 were enacted to serve the same purpose, same substance, only the little difference in form and they were pains to show that the force exerted by 9 (h) was just as forceful just as effective just as punitive as 504.</p>
<p>If that was true then it’s equally true today, 504, I submit is controlling Dennis for the reasons I -- I’m sorry I took so much time to try to develop without a success would not on the facts of these case warrant or would not justify the Court in preventing Bryson from being hurt and moreover, in any event there are the post conviction statutes which entitle him by congressional enactment.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Mr. Beytagh.</p>
<p>Argument of Francis X. Beytagh, Jr.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Mr. Chief Justice and may it please the Court.</p>
<p>With all respect, the positions of the several parties in this case are something like ships passing in the night.</p>
<p>The counsel started with the proposition that the basic question here is the constitutionality of Section 9 (h) of the Taft-Harley Act repealed some ten years ago and then proceeded to spend, as the Chief Justice and Mr. Justice Stewart pointed out, most of his time seeking it seemed to me to reopen and discuss again the basic underlying facts which have been found against petitioner at his jury trial some 15 years ago.</p>
<p>Now we look at the case somewhat differently.</p>
<p>As we understand it, the basic question here the basic issue that the Court repeals started was faced within principle on which we decided this case as to deal with the question of whether the rational of this Court in Dennis versus United States decided several terms ago applies here.</p>
<p>In short, that rational is simply this.</p>
<p>That one who fains or purports to comply with the law by taking some sort of action that is required by the Government of him but in fact is proceeding falsely or fraudulently in so doing lacks standing when he’s discovered to a fact that fraudulently to challenge the law that he purported to comply with.</p>
<p>That principle was not established in Dennis.</p>
<p>It goes back to earlier cases of this Court such as Kay and Kapp that’s been accepted by every circuit to my knowledge that has considered it.</p>
<p>It simply, it seems to me basic principle of judicial administration.</p>
<p>Any other rule would breed I would suggest disrespect for a law. It would invite avoidance or attempted avoidance of the orderly processes of law when one took it up himself to proceed fraudulently and then said well, yes I did that but it’s justifiable because the statute you see is invalid.</p>
<p>Now as we understand it, principally from petitioner’s brief, he suggests that there are several respects in which Dennis is distinguishable.</p>
<p>He says first that Dennis involved a conspiracy and this case does not.</p>
<p>What’s true as the Court ordered or noted in Dennis.</p>
<p>Some of the petitioners involved in conspiracy they are charged which was conspiracy to defraud the Unites States by doing exactly the same the petitioner did filing false affidavits under Section 9 (h) of Taft-Hartley.</p>
<p>The court noted there that at least some of the petitioners could have been charged under the false statement act that petitioner himself was charged under 18 U.S.C. 1001.</p>
<p>I take it the reason they weren’t, it was because some of the petitioners who allegedly and were found to have engaged in the conspiracy there were not themselves union officers required to file this affidavits, but instead participated with union officers in the conspiracy to file.</p>
<p>We cannot really see that the fact that a conspiracy was charged and was involved in Dennis is a substantial -- it makes that case of substantial difference.</p>
<p>There’s some language in the Court’s opinion in Dennis that refers to the fact of conspiracy but as we understand at that language related basically to a threshold issue in Dennis is to whether the indictment was appropriate there.</p>
<p>And the Court concluded that it was appropriate over strenuous arguments made in the contrary and in the course of that noted that a conspiracy was involved.</p>
<p>Petitioner also notes that the case is now on collateral and not direct review and in that respect differs from Dennis and for some reason that these presents a different situation.</p>
<p>Now, we’re quite aware the increasing breath of the scope for collateral review but we had not thought that we have reached the point where collateral was broader than direct.</p>
<p>And it seems to us that it’s a rather difficult notion to accept that petitioners are in better position with respect to the basic rational on which the Court relied in Dennis.</p>
<p>Individuals involved in Dennis because he is now on collateral and not on direct.</p>
<p>Petitioner also suggests and has argued in great length that his facts are different than the facts in Dennis.</p>
<p>Well, frankly we don’t quite understand that and his brief he relies extensively on affidavit that he filed on a later collateral proceeding and here he is noted that Mr. Bryson terminated all relationship with the Communist Party in 1947, at least in his view.</p>
<p>Now of course that was one of the issues that jury had to resolve and has not indicated that the jury resolve that against him.</p>
<p>In so far as he seeks to reopen and re-litigate those facts, it seems to us that’s not an appropriate question presented in this Court.</p>
<p>Question of supposed ambiguity of the notion of affiliation is also raised by petitioner.</p>
<p>There may well be contacts in which the notion of affiliation with the Communist Party or some other organizations would be a difficult and dubious thing to present to a jury.</p>
<p>But as Mr. Justice Stewart noted in the context here under a very narrow and limiting instruction which is set out in the Government’s brief which followed and was confirmed by this Court’s decision in Killian case pages 6 and 7 of the Government’s brief note 5 we set out the basic construction.</p>
<p>The jury was told that in order for petitioner to have been affiliated with the Communist party, he must have been a member and everything but name.</p>
<p>And as the Chief Justice has indicated, the facts as developed for the jury trial indicated that various incidence from the evidence are related which indicated that petitioner had continued to maintain at least some connection with the party, connection in the sense that a jury could find that he was affiliated with the party when he filed a false affidavit in 1951.</p>
<p>I think that any analysis of the Dennis opinion makes it rather clear that it’s difficult if not impossible for petitioner to say that the Court of Appeals erred in concluding the Dennis was controlling here.</p>
<p>Dennis said petitioners are in no position to attack the constitutionality of Section 9 (h) because they sought to circumvent the statute not to challenge it.</p>
<p>Ways are open to challenge the validity of statutes like Section 9 (h) of Taft-Hartley.</p>
<p>It was challenged in the Douds case but it was upheld as we indicate and as the facts before the Court of Appeals indicated a number of union members after the passage of union officers after the passage of Section 9 (h) who were members of the Communist Party determined that the best course of action was for them to formally disassociate themselves with the party and then file when and if necessary those affidavits that Section 9 (h) required.</p>
<p>As the facts also indicate here in 1958 jurisdictional dispute of rules in the union that petitioner was president of and petitioner then took it upon himself to file this affidavit that jury found to be false.</p>
<p>Douds was decided in 1950.</p>
<p>This was -- his affidavit was filed of less than a year later.</p>
<p>I think that the situation is not at all dissimilar from that of the Court referred to in Dennis.</p>
<p>In Dennis, the Court said that in view of these circumstances what petitioners there did was to flout, not simply to overlook the law.</p>
<p>The Court in Dennis further noted that there are appropriated and inappropriate ways to challenge the validity of a statute.</p>
<p>And that even though in some circumstances it may be necessary to violate a statute in order to challenge its constitutionality that a person who fains to comply with it, who purports to act consistent with it cannot then later be heard to challenge it when he has discovered have acted fraudulently.</p>
<p>It seems to me that there --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Let me see if I understand your argument in --</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Yes, You Honor.</p>
<!-- unk--><p><b> Unknown Speaker</b>: As I understand what you’re saying.</p>
<p>But when a commits perjury where a statute requires that perjury be both be made, that if that statute is itself void he is barred from raising a question.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: The only thing that I would say yes with the exception of your use of the term “void”, Your Honor.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, that is -- isn’t that the challenge he is making?</p>
<p>It is unconstitutional?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, he is seeking to challenge Section 9 (h) that has not been held unconstitutional but it was --</p>
<!-- unk--><p><b> Unknown Speaker</b>: But it has not been held unconstitutional but he is challenging it as unconstitutional.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: That’s correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: As I understand what you’re saying is when a man has come forth to swear something under a law which is unconstitutional, he is barred from raising the question of that constitutionality when he is prosecute for perjury.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, Your Honor, you say he is forced to take some action --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, that’s a statute, that’s a statute.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Yes.</p>
<!-- unk--><p><b> Unknown Speaker</b>: The statute said they had to do it, didn’t he?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: That’s correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: And he had to do it as I understand that you’re saying that he will know that statute is unconstitutional, therefore has always understood it with no effect.</p>
<p>You could prosecute -- he is bar from raising the question when he is charged with perjury.</p>
<p>Well, I --</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: With all respects Your Honor I don’t think the statute is of simply no effect.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, if suppose it’s unconstitutional?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: That’s a judgment of course this Court has to make.</p>
<p>The Court has already passed.</p>
<!-- unk--><p><b> Unknown Speaker</b>: But you say it can’t make it.</p>
<p>This man can’t raise it?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: It can’t make it at the instance of this particular individual because what he has sought is to [Voice Overlap] support the legal process.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, it depends if he is the one that’s called in the bench.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: But he had ways available to him.</p>
<!-- unk--><p><b> Unknown Speaker</b>: He had.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Just as --</p>
<!-- unk--><p><b> Unknown Speaker</b>: That other way also but how can the Government in good faith and good conscience and in not in fraud tempt to prosecute him for perjury under statute which why the oath that he is charged with it perjuring himself on is unconstitutional?</p>
<p>For me, like the Government is more fraud there than he is?</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Isn’t the answer to that in part at least to counsel that if you answer questions of the Government you make an election.</p>
<p>You may elect not to answer at all and challenge the constitutionality of the statue by that course.</p>
<p>But if you answer you must answer truthfully or take the penalties of perjury?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: That’s correct.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: That’s what this Court’s held, hasn’t it?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Yes, Your Honor and there were ways --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Which case did --</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Our ways are open to.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Which case did it hold it in?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: The Court has held this Your Honor.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Which case did it hold that in?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: In the Kapp case, in the Kay case, and in the Dennis case.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Which Dennis case?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: The one decided three terms ago in 384 U.S. 855, Your Honor.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, your point is counsel isn’t it at least I thought it was that it doesn’t make any difference whether the statute is unconstitutional?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: No, I really don’t think it makes any difference.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, isn’t that what you say Dennis holds that it just doesn’t make any difference even if the statute is unconstitutional?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, in one of the cases that we refer to, I believe it’s the Kapp case.</p>
<p>Agricultural Adjustment Act had already been held unconstitutional.</p>
<!-- unk--><p><b> Unknown Speaker</b>: That’s right.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: The Court still applied this principle.</p>
<!-- unk--><p><b> Unknown Speaker</b>: As I read your brief you say it doesn’t make if whichever way the constitutional question is decided is conviction for making a false statement withstand.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: That’s correct.</p>
<p>But --</p>
<!-- unk--><p><b> Unknown Speaker</b>: But that’s maybe for the no standing, isn’t it rather than [Voice Overlap]?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Right.</p>
<p>Right but I’m suggesting that in the circumstances here, we don’t have even that extreme situation because as the situation exists right now that statute was upheld in Douds.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, that’s going beyond Dennis.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, that’s one way of looking at it.</p>
<p>That it’s not even reaching the problem presented if you assume the unconstitutionality.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Or are there any cases around here that you know of that supports your -- this present theory of standing because he really was a bad fellow, he has to have standing to raise this argument?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: I didn’t think I was suggesting that it’s because he was a bad fellow.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, it’s the way it sounded to me.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: It simply that he violated the False Statement Act and that’s what he was charged of violating and that’s what he was convicted, having --</p>
<!-- unk--><p><b> Unknown Speaker</b>: And because he told a lie he shouldn’t be able to challenge the constitutionality of the statute?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, because he purported to comply with the statute.</p>
<p>Now he is seeking to turn around what he is caught in complying with it in a fraudulent manner.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, would you make that argument if it were really true and that statute run if it would make a difference under the false statement statute, whether the statute was unconstitutional or not.</p>
<p>Would you still make this standing argument?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: I’m not sure that I understand.</p>
<p>I agree with you that it doesn’t matter whether the statute is unconstitutional or not.</p>
<p>So --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, assume that it did make a difference, whether the statute was constitutional or not?</p>
<p>Would you say that he would be barred from raising the constitutional question just because he told a lie?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: No, but I think that’s an entirely different situation.</p>
<p>And that’s the situation that we had in Dennis and the situation here don’t involve it.</p>
<p>Dennis stated in conclusion, the governing principle is that a claim of unconstitutionality will not be heard to excuse a voluntary deliberate and calculated course of fraud and deceit.</p>
<p>One who elects such a course as a means of self-help may not escape the consequences by urging the misconduct, the excuse because the statute which he sought to obeyed is unconstitutional.</p>
<p>As I’ve indicated, the Government feels that there are policy considerations that support the rational of Denis as well.</p>
<p>If the law were otherwise, it seems to me it would be but an open invitation to individuals to seek to circumvent a law but according to comply with it, in the course of which they would commit a violation of the statute such as the False Statement Act.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Mr. Beytagh, the conviction in this case was for violation of what Titled 18 Section 1001?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Yes, Your Honor.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Alright, which is not itself 9 (h)?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: That’s correct.</p>
<p>As I pointed out earlier that the charge here was not that the petitioner had violated the very statute he seeks to challenge is unconstitutional but in the course of purporting to comply with statute which he now says is unconstitutional.</p>
<p>He violated a general statute applicable to a variety of circumstances by falling -- filing a false affidavit.</p>
<p>Our analogy is that exists in the law apart from Dennis and Kay and Kapp.</p>
<p>It’s long been established, this Court held in the Williams case the one who takes the stand and commits perjury in the course of a prosecution later held invalid can be tried for that perjury.</p>
<p>Moreover, the Government needs statutes like Section 1001 in order to fulfill its varied obligations of obtaining information in order to carryout a variety of programs.</p>
<!-- unk--><p><b> Unknown Speaker</b>: But you are assuming that, that would apply to all kinds of case this was reference to false statement?</p>
<p>You said in order to obtain this necessary information.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Yes, Your Honor</p>
<!-- unk--><p><b> Unknown Speaker</b>: First Amendment has some rights in the Constitution, didn’t it?</p>
<p>Submit and bestow some rights on the people?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Of course, Your Honor.</p>
<!-- unk--><p><b> Unknown Speaker</b>: With reference to exposing their political views?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, this --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Compelling them to have one political view rather than another?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: What we are maintaining Your Honor is --</p>
<!-- unk--><p><b> Unknown Speaker</b>: What was this oath about?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: In order to be a member.</p>
<p>In order to hold office in the union under the statute that’s been repealed some 10 years ago.</p>
<p>An officer had to file an affidavit to the effect that he did not support the Communist Party.</p>
<p>He was neither a member nor affiliated with the Communist Party.</p>
<p>The purpose of Congress in enacting that provision is what counsel has indicated --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Suppose he had to make an oath that he was not affiliated with the Republican Party and had not cast the vote for it?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, I want to be --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Will that be required of him?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: I would have more difficulty with that Your Honor in light of the --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Why would you?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Because the Congress --</p>
<!-- unk--><p><b> Unknown Speaker</b>: It was political.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Because the Congress made a number of findings on which it premised its legislative judgment here regarding the nature of the Communist --</p>
<!-- unk--><p><b> Unknown Speaker</b>: But, Congress has made any findings yet that’s for them to concern for justifying and interfering with the man’s political faith in view of the First Amendment, and has -- could not make any violation in my judgment.</p>
<p>What he is trying to do is to challenge prosecuting him from making that statement?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Yes, Your Honor.</p>
<p>Am I suggesting that there were ways that he could have properly proceeded to challenge its law but he didn’t do that.</p>
<p>Instead he filed his affidavit which purported to comply with, which the jury found was false.</p>
<!-- unk--><p><b> Unknown Speaker</b>: You were trying him for making on his ground.</p>
<p>You are trying him for making a statement which could not be required of him constitutionally under the law, and you want to prosecute him.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, again Your Honor in the Douds case, the Court held that --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Which Douds?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: American Communications Association versus Douds decided in 1950 just prior to the filing of this false affidavit held that the statue Section 9 (h) was valid and was constitutional.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Do you have to stand on Douds?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: No, we don’t have to stand on Douds Your Honor.</p>
<p>We --</p>
<!-- unk--><p><b> Unknown Speaker</b>: I should think, I wouldn’t want to per se.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, we suggest in our brief that there are ways of distinguishing the Court’s holding in Brown which held the successor statute Section 504 Bland and Griffin invalid.</p>
<p>Whereas of distinguishing Brown --</p>
<!-- unk--><p><b> Unknown Speaker</b>: But isn’t your basic proposition Mr. Beytagh, even if Douds was wrong, even if Douds ought to be overruled nevertheless, that’s not the issue that’s involved here.</p>
<p>The issue here is whether 9 (h) is constitutional or not?</p>
<p>Even if it was unconstitutional, we’re dealing with an indictment under the different statute?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: That’s correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Is that a basic proposition?</p>
<p>I just wonder why you argue should depend on Douds you don’t have to do that.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Well, I’m seeking to respond to Mr. Justice Black’s inquiry.</p>
<p>We’re not willing to concede that Douds has been overruled.</p>
<p>[Voice Overlap] I would try to rely on the elaboration in our brief far over than anymore at all argument?</p>
<!-- unk--><p><b> Unknown Speaker</b>: You’re the one that mentioned Douds.</p>
<p>I wasn’t the one who mentioned Douds.[Laughter]</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: But you’re the one who mentioned that the statute was unconstitutional and I suggested that the Court --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, you are the one that mentioned Douds and that’s what you have --[Laughter]</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: But Douds --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Now you have to defend it.</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: But Douds was the case that held to the contrary of your sub-position Your Honor.</p>
<p>As Mr. Justice White and Mr. Justice Brennan have suggested, we feel that petitioner’s convictions should be upheld regardless of whether the Court feels that Douds should be reach de novo rule here or not.</p>
<p>Section 9 (h) is no longer on the books.</p>
<p>It hasn’t been for 10 years.</p>
<p>Petitioner is asking this Court to reach back and hold unconstitutional statute that Congress itself has repealed some 10 years ago.</p>
<p>Petitioner also is asking the Court as we understand it to apply the decision in United States versus Brown retroactively.</p>
<p>He is not suggesting any compelling reasons for doing so but it seems too soon that that’s been done.</p>
<p>Moreover, statutes that are enacted and later held invalid or repeal, do have as the Court held in the Chicot County Drainage District case and has held over and over again.</p>
<p>They do have an operative effect and they are of some significance for the time that there are in existence?</p>
<p>It seems to us that as Mr. Justice Brennan pointed out since there simply is no element of the separate crime of violating 18 U.S.C. 1001, the False Statement Act involved in the matter relating to the validity of Section 9 (h) that petitioner is conviction is a valid one and should be upheld basically has been indicated.</p>
<p>We stand on the Dennis rational and we suggest to the Court that the Court of Appeals properly conclude the Dennis controlled here unless this Court is willing to overrule Dennis.</p>
<p>We think that petitioner’s conviction was properly upheld below and the judgment of the Court of Appeals should be affirmed.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Are you arguing in the -- that Dennis case should be overruled?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: Of course not, Your Honor.</p>
<!-- unk--><p><b> Unknown Speaker</b>: That his contention is still wrong?</p>
<!-- Francis_X_Beytagh_Jr--><p><b>Mr. Francis X. Beytagh, Jr.</b>: I suggested Your Honor that even if the Dennis case is overruled there are circumstances in this particular situation here which it seems to me don’t warrant the court’s exercise of its power to reach these questions that is raised here.</p>
<p>Thank you.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Thank you Mr. Beytagh.</p>
<p>Mr. Gladstein you have three minutes left.</p>
<p>Rebuttal of Richard Gladstein</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Your Honor, well I thought I have used all my time?</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: You have three minutes.</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: I’ll try to take less.</p>
<p>I think the basic inquiry that I sensed here I hope in our brief, that inquiry is this.</p>
<p>Does Congress have to pay attention to the Constitution of the United States?</p>
<p>Congress makes the laws.</p>
<p>It has a right to make laws of general application. It has the right and it does have a duty to pass those laws.</p>
<p>They’ve got to be general laws.</p>
<p>What right does Congress have at anytime under any Government --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well, couldn’t you test --- couldn’t you test out the constitutionality of all those things when you were trying this case, 15 years ago?</p>
<p>And weren’t they passed on?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Well, I can’t recall Your Honor whether they were all presented.</p>
<p>I’m sure they were.</p>
<p>I’m sure they were all rejected in the District Court and in the Court of Appeals.</p>
<p>It never were heard here.</p>
<p>This Court never granted the position for certiorari.</p>
<p>Congress passed along that we suggest clearly violated the prohibition against bills of attainder.</p>
<p>Now, if that’s true.</p>
<p>If that law is unconstitutional or for other reasons, First and Fifth Amendments which we argued then it seems to me the threshold inquiry is where you stop to the minute you determine that Congress has offended the Constitution.</p>
<p>If that’s true than Congress’ enactment should be nullified and it doesn’t matter at all what the citizen is required to do under the coercion of unconstitutional statute.</p>
<p>It was suggested that suppose Congress did this to the Republican Party and counsel said he’d have more trouble.</p>
<p>But supposing it is a Socialist Party.</p>
<p>Mr. Justice Jackson in the Douds case have -- have no trouble saying that the Congress can’t do this with the Republican Party of the Democratic Party or the Socialist Party.</p>
<p>We know from history that the Socialists were expelled after being lawfully elected to the New York legislature.</p>
<p>Congress has no more right and the States have no more right to pass a bill that lumps all of the people in a political group no matter what there opinions are and precisely because they’re unorthodox, hated, unpopular, precisely those are entitled to the protections of the bill of attainder in the First Amendment and it must have been for those reasons that the framers of the Constitution put those provisions.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Are all that Congress has done in years you say is -- are dealing with the Government and a like?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: No, Your Honor is talking about Section 1001.</p>
<p>But this case is based upon the underlying statute of 9 (h).</p>
<p>Without Section 9 (h) or some other Section of law, without some other Section of law, 1001 has no meaning in itself.</p>
<p>Congress can’t just pass a law saying answering any question that anybody ever asked you, you must be connected to some power that Congress has.</p>
<p>In this case, utilizing the commerce power or purporting to do so, Congress passed Section 9 (h) and then it simply used as an alternative method of permitting prosecution or enforcement, the use of 1001.</p>
<p>It could just as easily have put such a provision in 9 (h).</p>
<p>It does it all the time.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: I don’t think that’s actually the way I’m looking at.</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Why, Your Honor?</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: All that the Congress has done here is to say irrespective of whether to translate it a little bit.</p>
<p>Irrespective of whether what they did in Section 9 (h) is good or bad.</p>
<p>If you’re living with the Government, you cannot lie to the Government as a means of avoiding Section 9 (h).</p>
<p>If you want to attack it, go and attack it the other way.</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: I suggest that the more basic question is that when dealing with its citizens, Congress has no right to enact the statute which deprives them of their constitutional liberties particularly in the field of politics.</p>
<!-- unk--><p><b> Unknown Speaker</b>: May I ask you one other question as you heard my brother Harlan suggests.</p>
<p>Suppose Congress passes a series of laws, as it might well do in some time making you apply all the kinds of relief with reference to your political leads and persuasions and what you’ve done, is the man then to be denied the privilege of challenging at law on the ground that he lied?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: That’s what they say and if this Court should ever close its doors in that kind of a situation, then the Constitution would have lost its vitality for many, many people in the country.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: I think it’s pretty broad statement.</p>
<p>That would suppose the Government’s position would be the same on Mr. Justice Black’s hypothetical?</p>
<p>It passes the law, it violates the First Amendment and the prosecution is lying about to an agency that has jurisdiction whether it’s a Republican Party, the Democratic Party, the Communist Party or anything else.</p>
<p>Congress has long been inspiring doing it.</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Mr. Justice Harlan haven’t you assumed part of -- in your statement when you said an agency that has jurisdiction --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Well, I was thinking jurisdiction in the broad sense punitive, colorable jurisdiction --</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Well, it is my contention that there just isn’t any jurisdiction if the statute upon which power is being exerted is itself violated with the Constitution.</p>
<!-- unk--><p><b> Unknown Speaker</b>: May I suggest to you that if Congress can do that whenever it gets heated up over some political question, it has a way to set millions of traps for citizens who ought not to be convicted?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: All that history shows that the bills of attainder in England and in the colonies were precisely used and that’s the one distinguishing feature about them.</p>
<p>They were all politically inspired and utilized against political groups.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Is there anything Mr. Gladstein in any of these hypothetical situations that you have suggested that would prevent a citizen from challenging the constitutionality on First Amendment grounds or any other grounds when he refused to comply with the law, anything at all?</p>
<!-- Richard_Gladstein--><p><b>Mr. Richard Gladstein</b>: Well, this Court has reviewed cases of both types in Unites States against Brown to show their unconstitutionality, but here of course, we’re told by counsel that a year before my client filed the affidavit, this Court had held that 9 (h) was constitutional.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Fine.</p>
<p>Thank you.</p>
<p>Mr. Gladstein and Mr. Beytagh, we thank you for your submission.</p>
<p>The case is submitted.</p>
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Thu, 23 Aug 2012 18:13:04 +000063526 at http://www.oyez.orgSchneider v. Smith - Oral Argumenthttp://www.oyez.org/cases/1960-1969/1967/1967_196/argument
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Case:&nbsp;</div>
<a href="/cases/1960-1969/1967/1967_196">Schneider v. Smith</a> </div>
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Related Transcript:&nbsp;</div>
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Transcript:&nbsp;</div>
<p>Argument of Leonard W. Schroeter</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- versus Willard J. Smith, Commandant, United States Coast Guard.</p>
<p>Mr. Schroeter, you may continue your argument.</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: With the Court's permission, Mr. Caughlan is before you.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Very well.</p>
<p>Argument of John Caughlan</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Mr. Chief Justice, may it please the members of the Court.</p>
<p>Mr. Schroeter yesterday outlined the basic societal values which we believe are at stake in this case.</p>
<p>First, the primacy of the individual embodied in concepts, including the First Amendment; secondly, the fairness of governmental procedures embodied in concepts in the Constitution which include the Fifth Amendment.</p>
<p>One additional one should be added to that and that is the guarantee of governmental integrity which is embodied in the concept of the separation of powers in the Constitution.</p>
<p>We feel that this is based upon fundamentally the societal understanding that man is fallible, that power corrupts, and consequently includes basic principles such as the division of the three branches of government and specific provision of the Constitution including bills of attainder, a prohibition against them, recognizing that judicial process should govern any question of punishment.</p>
<p>The civilian control of the military because men trained in authority can sometimes to be insensitive to the relationship of the individual in exercise of their rights that we cherish.</p>
<p>And finally, that the power of the governments may not be delegated one to another and that legislative enactments and administrative rules carrying out those enactments must have the clarity and precision particularly in relations in touching upon these other fundamental rights, so that the individual can understand and that the democratic values of society maybe preserved.</p>
<p>With respect to the last, we believe that the regulations in the Act which is before the Court fails in every particular and has the fatal vice of vagueness which this Court has spoken off in many recent decisions.</p>
<p>The regulations which I wish briefly again to refer to Mr. Schroeter did yesterday, the regulations, first of all, and these appear in our brief on page A14, the ones that I'm about to refer to, provide that at every stage of the proceeding in determination of an applicant to a Coast Guard whether he can receive special validation, the Commandant must be satisfied, that his character and habits of life justify beliefs that he will not be inimical to security.</p>
<p>That's -- an additional regulation provides that if the inquires that the Commandant makes of any applicant are in any way incomplete, that the Commandant may obtain under oath additional information.</p>
<p>And finally on page A14 Regulation 12105 (d) (2) that if any applicant fails to furnish such additional information that the Commandant may require, he may hold the application totally in abeyance.</p>
<p>This is the situation which we have here that no further action would be taken and in each case that the mandatory criteria which may preclude satisfaction includes the satisfaction of the Commandant, the absolute authority in him to determine that the individual is not inimical.</p>
<p>Now, under this procedure Mr. Schneider was submitted a questionnaire which was referred to yesterday which required him in effect to construct his own loyalty oath, that is to set forth in detail his association with every organization on the Attorney General's list, to set forth in detail his activities, his reading, in connection with the People's World, and to detail his present attitude to --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: May I ask you, [Inaudible] what is the People's World?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: It's a west coast newspaper, a daily newspaper, or was at one time I don't know whether it's a daily newspaper or not.</p>
<p>It's a west coast newspaper.</p>
<p>The --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Was it published by the Communist Party?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: I do not believe that it was officially sponsored by the Communist Party.</p>
<p>I think generally, it is regarded as expressing the Communist Party point of view.</p>
<p>His present attitude towards the Communist Party was one of the things it would require and their principles, his attitude or the principles and objectives of that party, his attitude towards the form of the government of the United States.</p>
<p>For the reasons that are already been stated to this Court, Mr. Schneider having and feeling it was impossible to have an idea of what was required, refused under penalty of perjury to construct in effect this loyalty oath.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I understood -- maybe I am wrong, but I understand from the records of [Inaudible] that he was asked in his reply, telling what he had read, and this is -- you said it's a daily paper?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Yes.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What he had read in -- what he had to read then and what he had read there?</p>
<p>How long to answer it when that is required? How many months --</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: I couldn't imagine Your Honor.</p>
<p>It seem to me that it would be impossible for anyone who read a paper to set this forth in any reasonable length of time especially during periods of daily paper and even after that.</p>
<p>So, I would believe Mr. Justice Black that this wouldn't virtually be impossible for anyone to answer.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: How many volumes, do you think [Inaudible]</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: The Paper itself has 15 to 20 volumes, of thick ones and I just can't imagine how long it would take it, I believe it would be impossible.</p>
<p>Although this question -- these inquiries appeared in the guise of a questionnaire, we feel that they are indistinguishable in the inner impact and effect from the construction of a loyalty oath.</p>
<p>And indeed a loyalty oath that is far broader than anything has ever come before this Court which has been considered in the teacher-public-employee cases, the oath required public workers and has been denounced in the line of decisions which extend from Cramp to Shelton, although that is a slightly different type of oath, to Baggett, to Elfbrandt, to Keyishian, and the case decided this term Whitehill versus Elkins.</p>
<p>The underlying purpose, it seems to us of each of these procedures, the questionnaire we have in this case, the teachers and public employee oath that we have in the other cases is an attempt on the part of perhaps well meaning that we believe misguided public officials and legislatures to weed out dissidents, persons who disagree or wish to disagree with the status quo.</p>
<p>It's no accident, we think that in each one of the cases that have come before the Court, these had been answered previously, the actions had been instituted by teachers who are sincere and thoughtful people and have opportunity and time and consideration to understand the full implications of this oath.</p>
<p>And perhaps it's no accident that this comes up before -- this case come before the Court from a seaman who we believe is unquestionably sincere also, but who is not in the status of a teacher who wished to sail and who therefore attempted his best to meet the initial procedures until he has submitted the questionnaire which is before the Court.</p>
<p>But as this pointed out by Mr. Justice Douglas in the Elfbrandt case, it is the sincere, the persons of integrity who do bring these cases who needs oath to effect because others can construct their answer false oath or they do not have the sort of integrity and sincerity which is required, or which persons who present the issue for public consideration and consideration by this Court.</p>
<p>But it's precisely the same compelled conformity which is before the Court in every instance, and here we have clearly a situation where the interrogatory procedure takes the place of the oath procedure in the teacher cases, where the determination here is whether, if I can put it this way, the applicant to the Coast Guard's point of view has what we would call a bad First Amendment character because of his associations, because of his reading, and because of his attitudes.</p>
<p>Therefore, we feel that the statement ultimately made by this Court last Monday, in the decision to the Robel case, is particularly applicable here that it would be ironic if the name of National Defense, we would sanction subversion of those liberties which we cherished and which make the defense of the nation worthwhile.</p>
<p>And these points to the origin of the vagueness which is before this Court which is found in the Magnuson Act itself because the Magnuson Act authorizes, in it's principle amendment to previous legislation, was to authorize rules and regulations, to authorize procedures by the President when he found that the country was endangered by subversive activity or subversion.</p>
<p>This word itself as indicated by its use in the Robel decision is a word of the widest meaning, generally it means bad politics, bad from who's point of view, bad in that it may subvert constitutional principle, bad in someone else's mind because subversion may mean refusal to conform to the status quo.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: You have [Inaudible] am I correct in my recollection that this Court has, at least once, and perhaps as I recollect more than once, declined to review cases arising under the Magnuson Act in which, I think one case a radio operator was declined the certificate because he was member of the Communist Party?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: That is correct Your Honor.</p>
<p>There, I believe, have been three cases -- the Barrow case and the two others involving, in each case, (Inaudible) in which petition for certiorari or yes each case was petition for certiorari has been filed in this Court.</p>
<p>They are cited in the government's brief Your Honors.</p>
<p>We believe the fact --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] to what extent the government is relying in the Attorney General's list in this case?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: The government relies on the position that the -- Mr. Justice Black that the -- basically, that the applicant must answer the questions, but under the regulations, the questions must include answers to membership in each one of the 280 and more organizations that are on the Attorney General's list.</p>
<p>And in this amplified by the interrogatories which require the applicant to explain in detail his relationship to any organization which he belongs and I might add in this case, this includes on the Attorney General's list which had promulgated long after some of the organizations to my knowledge had become defunct such as the Washington Common Law Federation which in the State of Washington if one were to include sympathetic associates of that, would include most of the public officials during one period of time or many of them, most of the democratic officials that included such organizations as the labor schools, the Seattle Labor School, the North Pacific Northwest Labor School which was facultied by numerous teachers at the University of Washington, it includes the Harry Bridges' defense committee which presumably ceased to exist after his defense became unnecessary.</p>
<p>But these all appear on the list along with many, many other organizations and I would assume that in most of these cases, the applicant in this case who is an alert person and was aligned during the period of time when this happen, must have had not only membership, but sympathetic association, affiliation or even sympathetic association with these organization which is also included.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What was the ground of your objection with the use of the Attorney General's list?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Well, we -- in addition Your Honor to the vagueness argument which we're making at the present time, we also wish to discuss the list as used in this case and on its face as a plain bill of attainder which we believe was the position that Your Honor took about in the Joint Anti-Fascist case.</p>
<p>We believe that it's used here, it is a bill of attainder.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Do you think the Brown case has any relevance?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Indeed we do.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: With this being a bill of attainder in the Attorney General's list?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Indeed we do.</p>
<p>If I may anticipate at that moment, the argument we intend to make then I would say this.</p>
<p>With respect to this case, this isn't all -- we see it, always, as if this had come before the Court, if the power to construct these regulations at all exists, this case comes before the Court as though the Congress had written the Commandant of the Coast Guard is authorized to deny the application of any person who is or has been a member, sympathetically associated or affiliated with any of the organizations on that list.</p>
<p>If the powers are delegated to do that, this appears before the Court in that respect.</p>
<p>Now the only difference that we see here is that instead of saying he must deny the application, it says he may deny the application, but in the context of these regulations we feel that it is most unlikely that an administrative official would approve an application of someone who didn't disclaim present sympathy or association or sympathetic attitude toward any of these organizations.</p>
<p>We feel that the Commandant would feel impelled that he must ask the question under the regulations, would feel that any sympathetic relation to these organizations would atomically preclude denial.</p>
<p>That would be argued no doubt that he may approve, but we believe he would only approve if the applicant had somehow disclaimed knowledge or repudiated the organizations.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Is that one of the questions you would have to answer, that this Court should [Inaudible] or in some other way hold, that you've got to wait for a so called administrative proceedings?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Precisely, because the regulations say if you don't answer these questions we postpone any further consideration of your case until you have answered the questions.</p>
<p>So administrative remedies simply do not exist unless you throw away your constitutional rights before you start and that's the reason that we cannot believe, that the government can seriously argue that there can be any problem, exhaustion in the administrative remedies in this case Mr. Justice Black.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: So, if we find -- we're to find that the regulation is over broad would it be necessary for us to reach the executive order and the statute itself?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: We believe that the Executive Order in effect sets forth the basis for the regulations.</p>
<p>Of course the regulations are over broad.</p>
<p>We will present arguments since we've discussed about bill of attainder, I will talk about it this time Mr. Chief Justice.</p>
<p>We think that this statute, though clearly vague on its face because of the importation into it of this concept of subversive activity, and giving authority for the Executive Order only on the basis of subversive activity that the statute itself doesn't authorize the procedures which the Coast Guard has here instituted in these regulations.</p>
<p>Now, let me spell it out on some detail.</p>
<p>The Magnuson Act enacted in 1950 is simply an additional two paragraphs to an already existing Act, the Act of June 15th, 1917 enacted two months after the commencement of World War I.</p>
<p>This -- the first two -- the first paragraph which appears as appendix A1 of our brief authorizes the President, in case of war or national emergency with proclamation, declaration of war, disturbance of international relations to take full possession of all foreign or domestic vessels and remove there from members of the crew who aren't especially authorized to go aboard.</p>
<p>It is clearly and unmistakably a war power.</p>
<p>It's one of some 13 titles in what in effect is the War Powers Act of 1917 and applies only in case of a national emergency or in cases of a proclamation based on disturbance of international relationships.</p>
<p>The Magnuson Act adds to this power which the President has under emergency or war situations, the provision that whenever the President finds security endangered by reason of subversive activity, he maybe do two things; part A, with respect to foreign-flag vessels only, he may place guards there on, take full possession of the vessels that he wishes, and remove all persons not especially authorized by him to go aboard those foreign-flag vessels.</p>
<p>Secondly, and as the second part of the Act and independent from this and separate from it, it gives the President the power to safeguard against destruction, loss or injury from sabotage, subversive acts, accidents or other causes of similar nature.</p>
<p>The maritime facilities of the United States, and it was indicated by Senator Magnuson and no doubt of course, that the government has a very direct interest in protecting these facilities, just pointed out that no authority existed to protect docks and so forth in time of danger and in the argument before the Congress which is set forth in -- which is referred to in our briefs, this was the principal basis for this addition of the Magnuson Act.</p>
<p>It says nothing about removing members of crews and we believe there is nothing in the history of the Act.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: May I ask you this question?</p>
<p>I therefore by the referent of the word such, you have the statute before you.</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Yes.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: The President is authorized to institute such major – institute such rules and regulations, such as what?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: I have the same the puzzle with that Your Honor.</p>
<p>I have read this a dozen times, but I can't make it [Voice Overlap].</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: This is not an error, that you have omitted any thing from printing?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: No.</p>
<p>We have been puzzled over that Mr. Justice Fortas that we just can't make it come out to [Voice Overlap].</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: It's surely an incomplete sentence, isn't it?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Yes it is, yes Sir.</p>
<p>But on the basis of we believe the emergency war powers which do -- which existed before the Magnuson Acts and which do authorize, we could say screening with respect to domestic vessels, this Act does not, the new part of the Act does not apply to the removal of crews in vessels except under the old Act in national emergency and we believe that the government's argument in this respect really is misleading and misleads occur.</p>
<p>I'll refer to what is said in the government's argument on pages 15 and 16 of their brief in which they imply directly that the Act provides, if the President finds it necessary, in order to protect any vessel at harbor for damage or injury, he may take full possession of such vessel and remove them from -- the officers and crews from it.</p>
<p>Now, this applies only under the national emergency Sections so that as far as our reading of this Act is concerned, no authority whatever exists for the program which the Coast Guard have used.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I'm looking at the statute which is reproduced in the appendix to your brief on A-1, what part of that is the 1917 legislation, what part of it is the Magnuson Act?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: The first full paragraph is the 1917 legislation.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But that not all of the 1917 legislation?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Oh, this is the only one of 13 titles, Mr. Justice Stewart.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Yes.</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: That is all there is on this subject.</p>
<p>There isn't anything more that refers to the control of maritime facilities and vessels.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And then under the first paragraph, it's the 1917 --</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: That is correct.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And then, does the 1950 legislation begin with -- within the territory and the waters of the Canal Zone?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: That represents two little amendments, but the basic 1950 legislation that --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Whenever the President [Voice Overlap]</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: -- begins whenever the President finds the security, that's the Magnuson Act.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That's the 1950 legislation?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: Yes, Mr. Justice Stewart.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Now, is that all of it, right?</p>
<p>(a) and (b) --</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: And that is all of it.</p>
<p>Now there is --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Now, there is an additional paragraph and then subparagraph (e) and subparagraph (d), and that is all of it?</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: But there is one additional paragraph which we haven't included which provides criminal penalties for persons who go aboard vessels in violation of the national emergency provisions of the first paragraph.</p>
<p>In other words the original Act does not --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Inaudible]</p>
<!-- John_Caughlan--><p><b>Mr. John Caughlan</b>: That's correct.</p>
<p>May we reserve the balance of our time Your Honor.</p>
<p>Thank You.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Martin.</p>
<p>Argument of John S. Martin, Jr.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Mr. Chief Justice and may it please the Court.</p>
<p>I think in view of the war and varied attacks which the appellant here has launched against the statute, executive orders and regulations involved, it's important to know that the outset, the exact procedural posture of this case at the administrative level because I think this makes it clearer, the government's position as to which issues are really ripe for consideration at this time and which we consider are premature.</p>
<p>In October of 1964, the appellant applied for special validation of his mariner's documents.</p>
<p>At that time, he filled out and submitted to the Coast Guard an application and in an answer to the question concerning his activities in the organization which had been listed by the Attorney General, each of which was set forth in the application form, he responded as follows.</p>
<p>The answer appears at page 5 of our brief, “And I have been a member of many”, -- answer, “I have been a member of many political and social organizations including several named on the list.</p>
<p>I cannot remember the names of most of them” and could not be specific about any.</p>
<p>To the best of knowledge, I have not been a member or participated in the activities of these organizations for 10 years.”</p>
<p>That was the extent of his answer on this question.</p>
<p>Thereafter, the Commandant acting in conformity with the regulation which provide that when an application does not provide sufficient information upon which he can make a determination.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: You're talking now about the Commandant on regulations?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That's correct.</p>
<p>And he requested additional information in the form of interrogatories.</p>
<p>Those interrogatories are set forth at page 34 and 35, 36 of the joint appendix.</p>
<p>The interrogatories asked him specific questions, referred first to his answer on the original application and asked him that's set forth to list the names of the organizations on the list to which he belonged, to furnish the dates of membership, and the particulars concerning his membership in that organization.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What organization?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: These are organizations that were listed on the questionnaire, organizations which have on the Attorney General's list Mr. Justice Black.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Of what?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: The organizations that were listed on the questionnaire, organizations that have been listed by the Attorney General --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: About how many organizations? It looks like a couple of hundred at least?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Yes, there are a substantial number.</p>
<p>But, again I point out that these were organizations -- he was not -- the organizations were set forth for him so that he could go through them to determine which organizations he might have belonged to that were on that list.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But have counted how many there are?</p>
<p>I just see it them here --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I have not, I believe somebody figured -- 280 or 290 is I think --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: More like 300?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Correct.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: How long do you think it would have taken him to answer these interrogatories [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I don't think very long Mr. Justice Black for this reason.</p>
<p>I have no idea at this time how many of these organizations he belonged to.</p>
<p>I think in answer to your question -- to Mr. Schroeter before or to Mr. Caughlan concerning the People's World he was not asked to give his opinions on the articles that appeared therein.</p>
<p>He was asked only -- if you look at page 35 to state, “Have you ever subscribed to that paper?”</p>
<p>If he answer is yes, give the dates.</p>
<p>Then he was asked, “Have you engaged in any activities of behalf of that paper?”</p>
<p>I take it and I think it's the only reasonable way to read that question means did you ever work for it, did you ever write for it, did you ever act someway on behalf of the paper.</p>
<p>This is not an answer that calls for him to say what he thought on what appeared in it.</p>
<p>Now, it was at this point that --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Mr. Martin, excuse me.</p>
<p>These organizations are all on the Attorney General's list and there's no organization here that is not on the Attorney General's list or that has been removed from the Attorney General's list, is that was you're telling us?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is my understanding Mr. Justice Fortas.</p>
<p>Now, --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, Mr. Martin, I thought one of the questions was, are you now or have you ever been a member of, or affiliated, or associated with, in anyway any of the organizations on the Attorney General's list that proliferates to a very great degree, doesn't it, to say or associated with in any way --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, that is -- excuse me Mr. Chief Justice.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is one of the reasons why I think at the outset it's very important to get what we're involved with here because the question to which you refer sir is the one that is set forth in the original questionnaire and that is, are you now or have you ever been, it's question six at page 27 -- “Have you ever been a member or affiliated with in any way any of the organizations set forth below?”</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Doesn't it also say or associated with?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: It does not sir.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, he was asked once about this, wasn't he?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, as I read the question, it says, “Are you now or have you ever been a member of or affiliated with in any way any of the organizations set forth below?”</p>
<p>Then when he answered that as he did in the answer that I read to you Mr. Chief Justice, the interrogatories that came back called for him to list the names of the political and social organizations to which you belonged using the word “belonged.”</p>
<p>He wasn't asked at this point whether he was affiliated with any of these.</p>
<p>So, that is -- these are the questions that we were dealing with.</p>
<p>These are the questions that he refused to answer, the one set forth in the interrogatories.</p>
<p>Not -- he had answered the question on the questionnaire.</p>
<p>The Commandant felt that those answers did not give him enough information and he then set forth the interrogatories.</p>
<p>Those are the questions t which the appellant refused to answer.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Yes, I believe that if you read these interrogatories the outset referred back to the application that he made and he's being asked in connection with those organizations to list the names.</p>
<p>Now, I think the other thing that it is important to recognize at the outset here is the response that was made to this.</p>
<p>The response was not I find these questions vague and I cannot answer them.</p>
<p>The response was not that I feel these questions would tend to incriminate me under the Fifth Amendment of the Constitution of the United States.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: May I ask [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Certainly.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: The fact that it is considered a [Inaudible] I have been a member of many political and social associations included in the Attorney General's list?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That's right.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And as he is being asked, not only [Inaudible] those mentioned on the list [Inaudible] going to break if it's not answered?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: No, I think that the question called -- the original question called only for his answer to --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well, I couldn't tell [Inaudible] member of many political and social organizations, including [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I do think Mr. Justice Brennan that what the Commandant was interested in obtaining and what he meant and I think the interrogatories indicate, they're referring back to question six, and that that's the type of information that they're looking for.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well, where is the [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: They appear only in his answer.</p>
<p>It says, are you -- question six says only, “Are you now, have you ever been a member or affiliated with the organization?”</p>
<p>He chose to answer that by referring to the fact the political and social -- they apparently --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: The interrogatories, yes.</p>
<p>These were sent out in response to --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Voice Overlap] the interrogatories, they --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: My understanding is that they were -- these were sent out after his application have been screened and they determined they want to find out this additional information and it was --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Voice Overlap] But were they professionally [Inaudible] for his case and like of his [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I believe that is correct Mr. Justice Brennan.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, on page 35 of the joint appendix on their response to – the Commandant's response to his answer, he's asked to list the name of the political and social organizations to which he belonged that does not -- but it is not limited to the Attorney General's list.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And then he's asked to make a contribution, to list his contributions – contributions, didn't he?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Mr. Justice Fortas, I -- all I can say to that is that I believe that since these all refers back to the original question that he was asked which was strictly limited to that --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: But then you say that Mr. Martin, it says, with respect does your statements involve, that's on page 35 of the joint appendix, his statement above said, I have been a member of many political and social organizations including several that is on this list and then the Commandant says, “With respect to your statements above, list the names of the political and social organizations to which you belong, et cetera”.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, Mr. Justice Fortas I would certainly agree with you that there is an ambiguity perhaps present in the question as to whether or not they are now going outside the Attorney General's list.</p>
<p>I think that their intention was to referring to the organizations that they had referred to in the original question, and that was really all their interested in.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Do you think you have read that part?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Yes, I think -- I do think I would have read that one Mr. Justice Brennan.</p>
<p>But I don't think that -- again I don't think this is the issue because the response to this was not to the Commandant.</p>
<p>I don't understand your question.</p>
<p>I find it vague, the response was as was pointed out yesterday, if Mr. Schroeter's lawyer would said, “I have advised Mr. Schneider that it is possible for him to answer the interrogatories you have sent him.</p>
<p>So, the question was not one, of whether or not the interrogatories were vague, they would put this man in jeopardy to answer.</p>
<p>The question was essentially this and I think this is the issue that is certainly we do not intend that anything other than right to consideration by this Court.</p>
<p>That is when the government adopts a program, a screening program for an area which it considers to be essential to the national defense effort, does the government at that time have the right to ask an applicant for such position about his past associations.</p>
<p>Do they have a right to inquire?</p>
<p>Now, I think in treating this question, the entire regulatory scheme does become important because he is not -- these questions are asked not obtain answers which will then per se exclude him from employment.</p>
<p>They are the starting point of an investigation.</p>
<p>This is the same as with any application for any type of employment, for any type of clearance, this is --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: But let's say are we really -- are we talking here about government employees?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: We are not talking about government employees in this case but I do think --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Let me ask you another question? Apart from this procedure, the certificates for -- a mariner's certificates for -- where does this fall, an engineer?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: He was a second assistant engineer.</p>
<p>I think that was -- he was qualified for that.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Are those issued by the Coast Guard?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct Mr. Justice Fortas.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And this was a special requirement and added to the usual certification procedures?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<p>The mariner's document is basically one that relates to technical ability [Voice Overlap] that he is -- that is right Mr. Justice Stewart, he is qualified as a second assistant engineer.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: But now these men were working for private employers and privately owned vessels?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct, but I think --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And the United States says -- passed the Magnuson Act, currently passed the Magnuson Act, that said that in order to work on a private vessel, you've got satisfy these requirements and subject for [Voice Overlap]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<p>That is basically what we were involved in here a determination by Congress that our maritime industry is a vital part of our national defense effort.</p>
<p>I don't think that -- I think our experience in the two world wars we've had clearly indicates how important the maritime industry is to the free flow of raw materials in time of national emergency.</p>
<p>I don't think that can be doubted.</p>
<p>I think --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, do you think there are any limitations on what can be asked of a man to represent under oath as a condition of private employment in any industry in which is vital to the national defense?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I think that what can be asked of an individual for employment of any industry which is determined to be an industry which is involved into our national defense are questions that are relevant to a determination as to whether or not this individual is going to use that position in a way that will be inimical to the interest of the United States.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: You said there are no First Amendment limitations on that whatever?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I think that the question has to be a standard of relevance.</p>
<p>I think that is the determination that has to be made.</p>
<p>I think that certainly -- in Monday's decisions in the Robel case that this Court recognized that the government does have the right to exclude from sensitive areas, those who would use their positions in those areas -- adverse to the interest of the United States.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: What --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: The question then --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, at the moment -- what's bothering me is a question of how -- that is to say whether there are some limitations, procedural or substantive upon how the government may go about it and I hear what they asked this man, it seems just offhand -- it seems kind of impossible to answer, and they required him to answer it under oath, as they require him to say or list under oath his political and social organizations and how much money he gave to them, what his contributions had been, et cetera, et cetera, et cetera and they give him a form to be filled out before a notary public under oath.</p>
<p>Now, there is some [Inaudible] What I'm really going to ask here is -- do you think there are any -- do you think there are any limitations on the power of the government, either in terms of the method that it requires for disclosing information or in terms of the substance of the information that it requires to be disclosed?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I certainly would agree with you that there are limitations.</p>
<p>I think that there are limitations in the questions that can be asked and the procedures that must be followed.</p>
<p>I think this Court made that clear in Robel.</p>
<p>You cannot just adopt the rule that says, some particular membership of a particular organizations going to exclude you from such a job.</p>
<p>You have to have a procedure which will as you have here which will allow the party to see what the charges are against him, to confront the witnesses against him, and to have an opportunity to explain, to indicate what the extent of his membership was.</p>
<p>But I do think that a relevant starting a point for this type of investigation is membership in organizations which has been listed by the Attorney General according with -- in accordance with the procedures set forth in the Securities Activities Control Act.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: [Voice Overlap] it seems to me you've got similar thing as to establish -- I know your position on it, I am not suggesting spending a time on it -- establish that the Commandant may communicate it to this applicant about what he's talking about, and certainly I think we all agree that there is an ambiguity in the question stated by the Commandant in response to the first filing by this applicant.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And the second -- of course, the second thing you have to establish is it seems to me is that the -- these questions as stated not merely listing membership, not merely listing whether you are or have been a member in these organizations but also listing contributions and all the rest of this stuff that's in here as a reasonable way -- a reasonable part of a procedure which let us assume that is permissible in its objective?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, with regard to your first question Mr. Justice Fortas I think that there are two answers to the question of whether or not this ambiguous and I think that that was not the response that was made.</p>
<p>Two, if that is the case, the remedy here is not the remedy that this petitioner asks for, but to remand the case with directions for the Commandant to limit his questions to organizations on the Attorney General's list.</p>
<p>With regard to your second part of your question, I do think that contributions and number of meetings are relevant considerations.</p>
<p>This Court has said in a number of cases that people can innocently belong to such organizations without knowing the full extent of the organizations activities.</p>
<p>How do you determine what person belongs innocently and what person belongs with full knowledge of the organization's activities.</p>
<p>You have to determine the extent of his participation.</p>
<p>Did he only attend one or two meetings?</p>
<p>What do you know -- what does the government know about the meetings that he attended?</p>
<p>Maybe that there were a number of meetings held by these organizations that did not reveal their illegal purposes.</p>
<p>There maybe certain meetings of this organization that did reveal fully in which the participants at those meetings set forth the full extent of the organization's purpose and activities.</p>
<p>The government can't make a reasonable determination as to whether or not this fact of membership should preclude this man from the employment which he seeks unless they know the full extent of his participation in the organization, and how he feels and felt at the time about that organization's activities.</p>
<p>Did he subscribe to the purpose of the Communist Party to overthrow the government of the United States by force and violence?</p>
<p>If he did, then I think that that is a fact on which you'd certainly exclude him, if he still retains that position.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: But, let me ask you one more your question, I know I'm taking more of your time?</p>
<p>Section 121.07 on page A14 of the appellant's brief, that the Commandant is satisfied that the character and habits of life of the applicant are such as to warrant the belief that his presence on board the vessels of the United States would not be inimical to the spirit of the United States, on directive of special validation endorsement of the issue.</p>
<p>Now, that is the ultimate standard, isn't it?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: So that it's the standard that says that a Commandant has to believe that the presence of the person affirmatively, that the presence of the person on board the U.S. vessels would not be inimical to the security of the United States, is that right?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct</p>
<p>That is the [Voice Overlap]</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And to ascertain that, he looks at the character and the habits of life of the applicants, is that right?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Those are the language, that is the language.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- to you, those standards are -- don't raise any First Amendment problems?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that those standards have to be read in conjunction with the standards set forth in Section 121.03 which relate to the information that maybe considered which are listed and advocacy which give the nature of the information that they're concerned with, advocacy of the overthrow, or alterations of the government of the United States by unconstitutional means, commission of or attempts or preparations to commit an act of espionage, sabotage, sedition -- sedition or treason, or conspiring with, or aiding or abetting another to commit such an act.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, I guess the least we could say is that -- it is really sad, but this area dealing with the man whose livelihood and with his liberty that there has been a certain -- we're falling quite far and short of -- for the position that might be desired.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, to that Mr. Justice Fortas, getting there is this.</p>
<p>I think the standards do clarify what is meant by inimical as the Second Circuit said in the case involving the same statute, inimical is not a word that does not have meaning as back -- a word which this Court used in Aptheker, in referring to the activities that could be governed.</p>
<p>Here again I think the -- another important consideration that goes into this entire consideration of this case is the fact that this is a standard which is to be used in conjunction with a procedure that provides for a hearing to the applicant at which he will be given the right to confront -- first to be notified for the reasons why the Commandant feels he should be denied an application, a hearing at which he will be entitled to be present, to be represented by a counsel, he will be entitled to cross-examine the witnesses against him, confront the witnesses against him.</p>
<p>Now, in this connection it is our position [Voice Overlap]</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Can I ask you if the Attorney General gave any of those privileges to those who were put on the list?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: My understanding Mr. Justice Black is that those -- that after the decision of this Court at the Anti-Fascist Refugee case --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] whether this list was made up?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: This list does not contain any organization that has not been listed according to the procedures adopted after the Anti-Fascist Refugee case, and that these procedures were designed to comply what this Court said in that case, that they would provide procedures which gave the organization an opportunity to be heard.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: The remaining list [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I'm not really sure as -- I believe that is correct [Voice Overlap], but the procedures were made available to the organization.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Voice Overlap] affirmatively gets in the list, otherwise you stayed on the list and [Inaudible] and you can answer Mr. Justice Fortas, [Inaudible] He was talking about those [Inaudible] associations with.</p>
<p>And they think Mr. Brown is maybe a member of an affiliate division, as he pointed out in the question six that the original application speaks of being a member of or an affiliate with [Inaudible] Mr. Justice Fortas the standards which govern whether one is inimical and so forth are those in 121.03 and I noticed that he said membership in or affiliation or sympathetic association with any organization on the list, [Inaudible] haven't really had sympathetic association with.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I admit that isn't in the standard, I'm sorry if I -- if there was any confusion on that.</p>
<p>I was responding to a question that asked him about --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Voice Overlap] as you pointed out [Voice Overlap] that the question six on the application is still talking about associations with [Inaudible] Now you tell us that the Commandant makes his determination on the basis of the standards of 121.03 -- there is sympathetic association with.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that that -- what it means I think is that a party associates himself with an organization, knowing its purposes and --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well then, it has to mean something different on membership in or affiliations with?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: The third thing is about sympathetic association with.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct, and I think that it has to refer to some type of association with the organization.</p>
<p>But again Mr. Justice Brennan, I think the important thing is that this is a determination that is made and it can be made in conjunction with a hearing.</p>
<p>And I want to point out that this is a question which I think should not -- as this Court said, Monday in the Dubois Club case, it should not be decided in a vacuum.</p>
<p>It should be decided in a context where there has been a hearing at which the evidence has been produced and which the -- the Court can then judge on a factual record such exited in the case of the Boyd v. Roland which was taken to the Courts and we do not contend for a moment that when this hearing is held this man will have an opportunity to take the case to the Court and having the action of the Commandant reviewed judicially.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible] out under oath, there is no [Voice Overlap]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct, that is I definitely would stress again.</p>
<p>I mean that is the real question here for decision.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: That is not the case of Dubois.</p>
<p>He doesn't have to fill out, making a hearing on [Inaudible] by a complaint?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: This man doesn't?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<p>And that is the issue I think that is really before the Court, it's does the government, when a man comes to apply for position which the government believes is a position in an industry vital to the national defense, in which some effort should be made and taken to protect that industry against sabotage, what can they inquire of that individual for the position? Can they ask him about his past association?</p>
<p>Can man present himself for such a position and say, my name is John Martin and I want a job?</p>
<p>And --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I think the question is little more refined than that.</p>
<p>The question is can they do it this way?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Can they do it this way?</p>
<p>Let me ask you this Mr. Martin?</p>
<p>Do you know whether a person applying for a position with let us say the Atomic Energy Commission, has to go through a procedure that is comparable to this and yet he has to fill out this kind of a questionnaire with reference to organizations and associations?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Yes.</p>
<p>This is, I think, a fairly standard form.</p>
<p>I think it's a form very similar to one filled out when I came to the department -- I came to the Department of Justice --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Alright, are the regulations comparable to these, does the word sympathetic -- the phrase sympathetic association?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That I could not be sure of.</p>
<p>That I could not be sure of Mr. Justice Fortas, exactly what the standards are in the various programs and how they are administered.</p>
<p>I do know that there are any number of screening programs in various departments of the government, in the industrial screening programs that are used by the defense department in connection with defense related contracts.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: When you went to Justice, Mr. Martin, did you have to fill out something with direct reference to the Attorney General's list?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Yes.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: You did?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Yes.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Had they ask you any of these questions?</p>
<p>What is your present attitude towards the principles and objectives of communism?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: [Voice Overlap] No --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: How did you answer?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: No Mr. Justice Black. [Laughter]</p>
<p>They didn't nor did I inform them that I'd, at any time, been a member of the Communist Party.</p>
<p>So they had no occasion to inquire further as to --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] have you asked Mr. Kosygin what are the principles and objectives?</p>
<p>You probably get a little different answer, what you would get from the head of un-American activities, wouldn't you?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I'm sure that's correct and I think that that is an important reason why the applicant should have become --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: May I ask you?</p>
<p>What is his present attitude towards it?</p>
<p>His principles and objectives, in other words, you know what their principles and objectives are, you have to start off with that premise.</p>
<p>Do you think that's fair question to ask?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I think that it is a fair question and I think that the --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: About the principles and objectives of communism?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: How many people would you get to give the same answer?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I don't think the question is whether or not they give the same answer.</p>
<p>I think that the question is, if the man has belonged to the Communist Party and he has admitted that, the Commandant is faced with the determination, “Should I make that fact that he belonged to the Communist Party, something that will exclude him from employment or should I not?”</p>
<p>Now, the only way I can make that determination is to know -- have some idea as to what the man's participation was, what is the nature, and what is his adherence to their beliefs?</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] what are his thoughts about and attitudes towards the principles and objectives of a Democratic Party, A and the Republican Party, B?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Do I think --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Who could tell?[Laughter]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That I wouldn't -- that I don't think he should be required to answer certainly.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Martin I'd like to refer back to the question I asked you and I'm going to read just a few lines from the appellant's brief.</p>
<p>He says, “Appellant applied to the Coast Guard for the required special validation that was existing merchant mariner documents.</p>
<p>As a part of this application for this special validation, appellant was required to answer under oath the question, “Are you now or have you ever been a member of or affiliated or associated with in anyway any of the” and the rest of the -- concerning the approximate 280 organizations named by the Attorney General is subversive which organizations were listed in the application JA 27 to 33?” He answered, “Yes” and that would an explanation, I have been a member of many political and social organizations and so forth.</p>
<p>Now, I told -- I thought you told me that that wasn't true?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I think that my answer to you is correct and I'm sure that is probably just an error that was made in printing because I thought -- now this is what is the questionnaire which is set forth and perhaps the counsel might --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: You say this is wrong?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I think that there might have been some type of error.</p>
<p>I think that the -- as Mr. Justice Brennan pointed out, there is some language to that nature [Voice Overlap]</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Now, why do we get JA 27 to 33?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, that's the joint appendix here and that is where the answer I read to you, in the joint appendix which is brown covered volume.</p>
<p>That's not the appendix to the brief.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Yes, the actual questions at page 27 item six, isn't it?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: It is not phrased the way that it is phrased in the appellant's brief.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That's correct.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Voice Overlap] but is there really much difference between association and affiliation?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I don't think there is a --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Not a major difference?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: A substantial difference --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And so he was asked about affiliation.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<p>But I think here again, it is important to point out that when he answered that question, the question that was then subsequently posed to him when the Commandant of the Coast Guard decided the additional information is to list the question -- the organizations to which he belonged.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: That's right.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: And it is that question which he refused to answer.</p>
<p>It's that question which he says, they have no right to ask.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: That's right.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: And I think --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, I supposed that of these 280 organizations, all having them proscribed because they were affiliated in some way with the communist movement in the opinion of the Attorney General that many of these organizations could in some way be affiliated with each other, and now without a member of one of them having any idea perhaps of what that affiliation might be or whether there was any affiliation.</p>
<p>Still you require -- you require this man to say under oath what affiliation any of those organizations might have? [Voice Overlap]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: No, Mr. Chief --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: And in the days when this was initiated there was a great danger of a man going to the penitentiary if he misstated any of those things?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, Mr. Chief Justice that -- his answer indicated that he had some problem with the question.</p>
<p>The reply to that was not the answer to that question.</p>
<p>It was, tell us those to which you belonged.</p>
<p>That is the question which he did not answer.</p>
<p>That is the question that the Commandant is waiting to have answered.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Oh, yes I understand.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I -- you know I -- all I'm saying [Voice Overlap]</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I understand that, I'm talking about the over breadth of this regulation as it was applied to this man.</p>
<p>And let me ask you this also, you cited that the -- our action in the Dubois case yesterday.</p>
<p>There is some difference between the two cases in there because in the Dubois case, they were trying to avoid all the entire administrative process and wanted us to take the case and decide it on the merits of it.</p>
<p>In this case, a man was demanding a hearing and he wasn't given a hearing?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<p>I agree with you Mr. Chief Justice entirely on that preposition that the question is in this man has every right to bring this question to the Court, is does the Commandant have the right to require him to answer the questions before he passes on the application.</p>
<p>I'm not saying that the Dubois has anything to do with that question.</p>
<p>What I am directing myself to is that the appellant make several contentions that the hearing maybe inadequate because witnesses against him may not be produced.</p>
<p>That the standard -- the burden is going to be cast on him to prove that he has a bad Fifth Amendment -- a good Fifth Amendment character.</p>
<p>I think that these questions, the other question is, that he raised which I think also is going to be effective only by a hearing is the extent to which membership in the Communist Party or any other organization may preclude granting of a special validation because all of these questions were going to be developed at the hearing, I think you'll find that after a hearing has had that many of these questions are going to drop out of the case.</p>
<p>I have been informed by the Coast Guard that they now take the position that four witnesses will be produced at the hearing.</p>
<p>So that question of whether or not you could -- the question left open in other case in this Court -- whether you can at any time rely on information not produced, will not be a factor in this case because I feel that this is an advice, that this goes to a hearing, or witnesses will be produced.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Mr. Martin, I wonder if you [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Certainly, Mr. Justice Harlan.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I certainly intended to do that, but before I do, I just would like to point out one other fact in relation to the hearing and that is that we -- the question of burden of proof, I do think that again this is something that will -- if there is a hearing in this case that will prove to be no issue because it is my understanding that the Commandant has taken the position that it is the government's burden of proof to establish that a special validation should issued so that -- I just -- these problems those --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: But it's never [Inaudible] too, is it Mr. Martin, that there's no hearing at all until he finally answer some of these questions.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct, that is absolutely correct and I think that this is [Voice Overlap] --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And one that cites me that we haven't thought of yet, at page 35 and I'm speaking of the interrogatory being -- this is question two at page 35, “Are you now or have you ever been a member of or affiliated with in anyway the Communist Party, its subdivisions, subsidiaries, or affiliates?”</p>
<p>And how the heaven would think can one know of how to answer that?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that certainly man knows whether or not he has been --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: How can one know about [Inaudible] How does one know that a particular organization is or isn't affiliated with the Communist Party?</p>
<p>If he himself is merely affiliate, was an affiliate --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I think the answer to that question is, I've been a member of the Communist Party to the best of my knowledge.</p>
<p>I have not been a member to any other organizations which is affiliated with it.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: But he didn't ask whether he's been -- I'm asking only whether he's been a member of.</p>
<p>He's asked whether he's been affiliated with an affiliate of the Communist Party.</p>
<p>I don't know how long you would answer that factor.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that if there is problem with the particular question, the answer is perhaps to attack a particular question to say that I cannot answer that and I think if that have been the answer you'd be dealing with a different problem.</p>
<p>This man has said according to his attorney's letter that he could've answered the questions, but the government has no right to inquire.</p>
<p>So, that's why I think we're not concerned here so much with specificity of the question because had there been a challenge to the specificity of the question, then yes the Commandant should have come back and been specific as he was with the organization to which he belonged.</p>
<p>That is certain with something that can be handled administratively at that point.</p>
<p>This is a man who just said you have no right to know.</p>
<p>That's the issue.</p>
<p>Do we have a right to know?</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Did he say that?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Yes.</p>
<p>He said that in his letter -- Mr. Schroeter's letters --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: [Voice Overlap] did he say it in the -- in his application answering the questions that they were propounded to him, did he say, “You have no right to know?”</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: He said nothing to those.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: The answer came --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- then he is complaining that he wasn't given a hearing.</p>
<p>Now, do they have a right to compel him to give all these answers to the extent that they can deny him, convict him on what he says before they give him a hearing or is he entitled to have a hearing at which witnesses will determine the truth or falsity or the relevance of the questions that are asked to him so he can have a record upon which to obtain judicial review?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I do think Mr. Chief Justice before he is entitled to a hearing, I think that the Commandant does have a right to ask him to provide information about himself which will enable the Commandant under take an investigation to lead to the determination initially whether or not the special validation should be issued.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Then in your opinion, could he make the investigation and determine that he was not entitled to it and deny it?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: He could initially deny it, at which point if he took that action this man would be entitled to the hearing.</p>
<p>The man will always be entitled to a hearing and always be entitled to judicial review except in the cases where he refuses to supply information which is relevant.</p>
<p>That is question before the Court, here again, I want to stress --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Why can't he then deny it?</p>
<p>Why could he deny this man on his application and that let him -- let him demand a hearing if he wanted?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think the position of the Commandant is that he cannot -- the Commandant cannot bring himself to a position where he has enough information about the man to present at a hearing until certain factors or certain answers that are given by the applicant.</p>
<p>To use the example I used before Mr. Chief Justice, if I were to show up that the Coast Guard station, ask for a special validation and they -- let's say, “My name John Martin and I want a special validation”, and they say well, you know, they started asking me some questions, I said, “No, I will not answer any of your questions.”</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: But he didn't say that.</p>
<p>He didn't say that here.</p>
<p>He filed answers to all of the questions that were asked.</p>
<p>They might not have been sufficient.</p>
<p>They might not have satisfied the Commandant.</p>
<p>Why couldn't the Commandant say, “I deny your certification” and then the man as you say is entitled to demand a hearing and he would be given a hearing, but why shouldn't they do that instead of saying, “No you never can have a hearing until you give us answers to questions that are not in regulations that are propounded by us and until you answer that we won't give you a hearing”.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think the reason for that Mr. Chief Justice is I think because before the Commandant can participate meaningfully in a hearing, he has to know something about the individual which will enable him to determine to make some findings, to gather evidence as to the nature of this man's character.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, why couldn't he say?</p>
<p>Why couldn't he say, “Your answers to our questions are not sufficient for us to determine whether you are qualified for this position or not.</p>
<p>Your application is denied.”</p>
<p>Then as you say, if it's denied in that way he has a right to demand a hearing.</p>
<p>Now, why couldn't that be done in order that the man could get his judicial review?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, the question is then what would happen at the hearing.</p>
<p>This man would come in and he would testify that I am a person, his counsel has represented, that Mr. Schneider, I'm a loyal person in the United States.</p>
<p>The Commandant is in no position at that point, having no information about the man to contest that fact this purpose of this --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Would say he wanted to deny him, deny him the right to have that hearing?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: He does not want to deny -- he does not want to deny the man the right to have that hearing.</p>
<p>But he does feel and I think reasonably that before the Commandant can participate meaningfully in the hearing as a represent to the government they have to have some information about the individual because all the hearing would come out to as this man coming in and say, "I'm a person loyal to the United States”.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: How do you know?</p>
<p>How do a Commandant know that that's all that will happen?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, it has to be assumed that if he is not going to answer questions about his -- this is the assumption in which the regulations have based, that if a man is not going to furnish the information that they need to make the determination --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Suppose he would come in and say, “Well, now I'm not a member of the Communist Party or I was a member of the Communist Party and I resigned a long time ago and I'm no longer interested in it.</p>
<p>But I think what I read in the newspapers is my personal business and I don't propose to answer that because they're invasion of my First Amendment rights, I don't propose to answer this question and that question because I believe it's an invasion of my rights,” then they could take whatever action they wanted and the man is entitled to judicial review, but when the Commandant says, “Well, [Inaudible] we won't give you a hearing until you answer all the questions that we want to propound to you”.</p>
<p>The man is never in the position as you claim here to come in and have any judicial review.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Mr. Chief Justice I hope -- let me try to make myself clear on that.</p>
<p>I do think that this action is properly brought to determine whether or not the Commandant had the right to ask the questions and require this man to answer those questions.</p>
<p>If this Court determines that the First Amendment gives a man a right to refuse to answer any questions about his past associations even when he is applying for a position in National Defense Related Industry, certainly that issue is before the Court, the only thing that I said about the hearing is that certain other arguments which he made concerning what is going to take place at the hearing.</p>
<p>Should he wait the hearing?</p>
<p>We do not contest the fact that he had absolute right to judicial review of the determination not to proceed further with the application.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, what is the jurisdictional question?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: We have -- we do not contest the jurisdiction of the Court.</p>
<p>In any aspect to hear if the case relating to the question, can the Commandant require a man to answer questions about his past affiliations?</p>
<p>What we said that it is --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Can that be the question when they haven't given him a hearing where he can assert his reasons, why he doesn't want to ask -- answer particular questions?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: These all to be done and wrapped up and the man convicted before he has a hearing even?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, his answer was contained on his attorney's letter when he said we had no right -- the Commandant had no right to ask the questions.</p>
<p>The Commandant insists that he does have the right.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: You forced him to – you forced him into those things because you won't give him a hearing on which he can have a record.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I would agree that certainly the remedy, if the Court disagrees with this, that this manner is -- that the Commandant did not have the right to ask -- withhold the action and in receipt of his answer just to order a hearing.</p>
<p>I don't think it's to grant him the application which he seeks which is the relief he sought in the District Court, but I do think that would be the proper remedy in that case.</p>
<p>I do --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: You concede that this man should have been given a hearing and that we should say -- sent it back and say that he should be given a hearing?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I don't concede that much, no Mr. Chief Justice --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: How far do you go?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I do feel that -- the question that he dispose is does the Commandant have a right to ask these questions and get these answers?</p>
<p>This man said no.</p>
<p>It's our position that the Commandant does have a right to ask questions concerning the organizations on this list.</p>
<p>Now, it maybe that a particular question could be more precise, it might be proper to order that a question be made more specific if the Commandant insists on an answer to that.</p>
<p>But if there are certain questions which are quite precise what organizations did the man belonged to?</p>
<p>Now, he just said that we had no right to ask any of these questions.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: [Voice Overlap] not only what did he belonged to but what organizations that he belonged to that were affiliated with any other organization that was prescribed?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I would concede Mr. Chief Justice that certainly that particular question is not precise and --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, isn't that the basic question of the application?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: No, I think the basic question started with the first one which asked him initially about the organizations on the Attorney General's list and then the first question on the interrogatory which asked him which organizations he belonged to, I think that's the basic question.</p>
<p>I think that this is an answer -- this is a question to which the Commandant has the right to expect an answer so that he can make the reasonable investigation of this man and to determine whether or not a special validation should be issued.</p>
<p>I think that is the question before the Court.</p>
<p>Now, I would like if I my at this point to turn briefly to the question which Mr. Justice Harlan asked concerning the delegation of a power to the -- whether or not the Magnuson Act authorized this type of program that we have here.</p>
<p>I think the answer to that is that it did.</p>
<p>I think the Congress was acting.</p>
<p>Unfortunately there is not a great deal of legislative history because this was an amendment to existing legislation that was passed during the Korean crises, but there is some history which I think is significant.</p>
<p>This is an Act which was passed amending existing legislation and under to that existing legislation there had been during World War II, screening program from merchant seaman which had been enforced.</p>
<p>At the time the bill was introduced in the Senate, Senator Magnuson informed the Senate that the purpose of this bill was to allow the President to institute security measures similar to those adopted during World War I and World War II.</p>
<p>So I think that fact indicates that Congress contemplated some type of screening procedure similar to that used during World War II.</p>
<p>Second, I think that in the use of the words, the President has delegated the power to make rules and regulations, to prevent sabotage and espionage.</p>
<p>How do you -- what rules and regulations do you adopt, why does the common sense meaning of those phrases when put together.</p>
<p>It seems that to prevent sabotage and espionage, you have to do two things.</p>
<p>You have to deny access to those places that maybe subject to those activities; one, to the people who might engaged in it and two; to the materials that might be used to carry out those activities.</p>
<p>So, I think that just on a reading of the language that it contemplates that rules and regulations are going to be adopted to exclude people from areas where sabotage and espionage could be engaged in.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Mr. Martin, why do you make of this incomplete sentence as I see it?</p>
<p>The word ‘such' is generally a word indicating the limitation is going to follow, that is to say authorizing the President to institute such measures, and issue such rules and regulations, and ordinarily that would be followed by some of these to effect as maybe essential or as maybe necessary in the circumstances and like that, but the statute apparently uses the word ‘such' and that's all.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, the only thing I can say to that Mr. Justice Fortas is I do have somewhat difficulty with it.</p>
<p>I think it may come into this statute in view of the fact that again we're dealing now, a paragraph to which you refer is the beginning of the amending legislation.</p>
<p>They were concerned.</p>
<p>They were adopting an amendment that maybe that they would refer back to types of rules and regulations that could've been adopted under the first part, that is the --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: [Voice Overlap] Well, that's what I was asking, further what I had in mind and it's so would that going in mind whether it was the intention of the Congress in the Magnuson Act to authorize this highly particularized procedure.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that there's some indication that it was because as I pointed out that this is the type of procedure that have been used during World War II.</p>
<p>That's what they were driving at.</p>
<p>They're trying to give the power [Voice Overlap] --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, is there anything in the 1917 Act that would indicate this kind of certification of persons as an appropriate procedure regardless of what they would do [Voice Overlap] --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I don't think that there's any --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- such referring to an amorphous course of conduct that says further also feeding them chicken once a week and something like that.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I do think that it can take on some meaning from the fact that this is what they were doing pursuant to the authority granted in this original Act and it was something that was brought to the Congress' attention.</p>
<p>I think this also gives meaning and the counsel correctly pointed out, and I will apologize for briefly not making clear enough the fact that -- we referred you to the fact that the President was also given a power to exclude people from vessels that was in connection here in subsection (a) which dealt with the foreign vessels in our waters, but I do --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: There's nothing -- let me ask you this specifically.</p>
<p>There's nothing in the bills preceding drafts of the legislation that would indicate what such -- what was supposed to follow such or what is the referent to that word “such”?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: To my knowledge there is none.</p>
<p>I'm just -- I can't be sure of -- I don't recall any.</p>
<p>But I do think that when the President was given the power to exclude persons from vessels of foreign nations in our waters, it's implicit and that is that Congress recognized that he would certainly have at least that power and draw the powers when dealing with our own merchant marines which is much more vital to our national defense and to which our power is so much greater to regulate.</p>
<p>We must have greater power to regulate our own shipping --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well, Mr. Martin do you suppose going to Mr. Justice Fortas' question, are we going to interpolate something like after the word ‘regulation' as he may regard, that is the President, to be necessary, then drop down to be the safeguard against discussion, would it interpolate something like that?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that is certainly the intent of Congress, it's to give the President the power [Voice Overlap] --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Voice Overlap] would be necessary?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That's right, they also think that they --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well, I'm just wondering if that so, then there is a serious question of whether the opinion is sufficiently defined delegation to the President, don't you think?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that there are again several factors are there on that, Mr. Justice Brennan --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I'm getting back to some of the things I thought in the Robel case --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Yes, I read your -- the decision of the Court very carefully in the Robel.</p>
<p>I do think there are many factors that distinguish this case.</p>
<p>The most particular being, if one that -- this is not as in Robel case, we're dealing with the screening program and not a criminal statute itself, but more importantly --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: You make a distinction that this is not a criminal statute?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I didn't intend any [Voice Overlap] nothing I said to Robel would indicate, I would have just [Voice Overlap] --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I must say, Mr. Justice Brennan, I find it -- although (Inaudible) the opinions favorable to themselves --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: That was a criminal case, you're quite right, of course?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Yes and but I do think that an important consideration is that you don't have here what you had in Greene v. Mcelroy.</p>
<p>We contend and submit that the procedure is established here, for processing these applications do mean that due process requirements of the Fifth Amendment, to that reason that you are not dealing with the same type of problem that you had in Robel where there are no procedures and I think your opinion makes it clear because you're feeling there was no review available in any way, whereas here, we do have a hearing procedure which does mean, we submit, that requirements of due process, and the -- from which there will be an adequate opportunity before this appellant to pursue his judicial remedies.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: May I ask you one question?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Certainly, Mr. Justice.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: How far back do you think you're authorized to go into this man's life?</p>
<p>I think you mentioned it, but his answer must be relevant to the list given to him?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I do think that they have a right -- certainly, to inquire of a man concerning the activities during his adult life.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: All of his life?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is certain now -- not to preclude him sir from the activity, but as a starting point for an investigation, these are questions which I think -- somebody comes looking for employment and you want to see if he is qualified for that employment for a reason, you have to deal with his past life and what part's of his past --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] you'd go all the way back?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I think that the -- it certainly goes back for a reasonable time.</p>
<p>Now if the man is 80 years old and maybe --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: In here, it's not a reason for time like this?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I don't think so, I think that the -- they have the right to ask what those organizations were so they can pursue the investigation and determine among other things, the truthfulness and [Voice Overlap].</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Now, social organization refers to [Inaudible] doesn't it?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct, and I would – again, I just point out that these are our -- when you read the question [Voice Overlap] referring back to the --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] that includes the church, isn't it?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: No, I --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That includes the church?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I always considered -- I never consider church of a social organization.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: How about the weekly bridge club?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think if that term were used in a vacuum certainly Mr. Justice Brennan that would be --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, I must say I can't be persuaded Mr. Martin, that they intended as you suggest, to limit this to organizations on the list?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well -- that's a matter of reading the question that might have been -- the prime question which I can argue about.</p>
<p>I would suggest that if that is what you think is the defect in this case, again, the remedy is one that the Commandant to correct the form , it's not to either -- you know, to grant him the license -- the validation to declare the statute unconstitutional.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Mr. Martin, this is one of those lines, that -- I know that you didn't cite in your brief and I quite understand why Shelton against Tucker case in the 374 - 364 U.S, but I as well surprised to see that the appellants also didn't cite that name, part of it I suppose is a subjective ego damage of the author of that opinion, but do you think, in your view, if you're familiar with that case, do you think that decision has relevance here?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I am having -- to be honest Your Honor, I'm having a little difficulty with --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That's the one in which -- in Arkansas they asked the school teachers to list the names of every social -- every organization that which the school teachers had belonged over a period of five years, and the Court -- now because it was too broad inquiry, even though the governmental purpose of Arkansas was perfectly legitimate.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I agree that they can be -- I certainly agree that they can be broad areas in which you can inquire to our contention in this case that were ruminated to the what we feel and I understand if there was a disagreement in the Court with our reading of that question, that when you're limiting your inquiry to organizations that on the Attorney General's list, were that list is being used is not per se to exclude the person, but solely for the purpose of starting an investigation which will lead eventually to determination, whether or not that person is presently qualified, and he presently presents possible danger to the interest of the United States, I think that in those circumstances, certainly the inquiry is reasonable.</p>
<p>I would agree wholeheartedly that if a question that was asked, you know what church do you belonged to, is not a proper matter of inquiry in this.</p>
<p>But I do think, when we're dealing with the organizations here involved and limited to that, that that is a proper starting point for investigation.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, that's true of course, fo you suggest that we send it back and limit it to Attorney General's list, that would be in effect an approval of the Attorney General's list, obtaining names, as people have had their names put on without any hearing [Voice Overlap], we would have to express an approval of it, wouldn't we?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I don't think --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What is the objective in using the thing, the Attorney General's list?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I do [Voice Overlap] --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What is the advantage [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I do believe that that is correct Mr. Justice Black and to a certain extent that you would have to say that this is a reasonable starting place.</p>
<p>The Attorney General has made some investigation.</p>
<p>He has made a determination as an agent of the government, that these organizations are organizations which have engaged in acts which are contrary to the interest of the United States in a manner which would be unconstitutional or they have their purposes for such activity.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, wouldn't we approving the use of that as indicating the truthfulness of what he has done?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that you have -- I can't say that it doesn't carry with it some proof of fact that this is a reasonable starting place for investigation.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: We're getting to starting place, what I'm talking about is putting a man up against answering, whether he has been a member of something that the Attorney General made a list of and said it was a Communist Party organization.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I don't think you have to approve the list.</p>
<p>I think what you have to approve is whether or not it was reasonable for the Commandant to use this list --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] it can be reasonable, can't it?</p>
<p>If it's a void list and they were given no hearing.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that it can vary on the use which that information to make --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But they've given the use of even though it was void because nobody gives notice or a hearing on them?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that if the government is going to make a determination that a person is -- is or is not someone who would jeopardize the interest of the government, if you're allowed to be a sensitive position, it has to determine some method and arriving on its conclusion that he is or is not person who would use that position improperly.</p>
<p>It has to look to his past activity and has to make some judgment on --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: You have to look to the past activities?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is what --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What does it have to look?</p>
<p>The past documents, labeling people with something, that they were not given a hearing by the constitutional requirements.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, it has to form certain standards as to what past activities might provide on this person's present character and if it determines whether or not by means of a published list or anything else, if the government initially determines that certain activities and certain organizations are engaged in activities which are engaged in errands to unconstitutionally overthrow our government, then --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That's it.</p>
<p>What you are doing is using the Attorney General's list to show that they were and I'm asking you how it can possibly be done lawfully if its void because of a lack of due process [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I don't think you -- Mr. Justice Black, I don't want to believe in this, but I think the difference between this is to whether or not how there -- if they are using it to prove, they're not.</p>
<p>Our contention is that they are using this as a starting point of an investigation, and when they go through that investigation and come to a hearing, if they say to this appellant that you are a member of the ABC organization which is designated by the Attorney General's as that being communist action organization --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] designates by un-American activity --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Fine.</p>
<p>He is still going to have the opportunity at that point.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That would be just as good, wasn't it?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: But --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] un-American activity is permitted --</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: -- on the effort of the others, and if that's true, why not any other organization are labeling somebody?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: But, I think the important thing Mr. Justice Black is that if -- when they say to him, because that organization is listed by whoever you wanted to say listed, he's got the right to commend at a hearing and say --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] they have the right to come in then and object but why does a government have a right to use it, if it's a void document?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: My -- again we're in -- I just don't believe that the government is using it.</p>
<p>I'm saying they're taking this as a starting point to the investigation.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] put a name as simple as [Inaudible]</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, no -- I'm saying that we have made our investigation on this organization and we find that he is engaged in activities which if you were part of would indicate to us that you are not the type of person who can be granted a sensitive position.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Let's suppose that's a bill of attainder, assuming, would you say the government had used it for this purpose?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I don't think it's a bill of attainder.</p>
<p>I can't assume that Mr. Justice Black.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I said assuming, assuming it's a bill of attainder, would you say the government could use it for this purpose?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I find it impossible to take your assumption.</p>
<p>I don't think it is because what you're dealing -- I don't see how you can assume something as a bill of attainder when what you're doing is trying to make --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] to assume that, you want to answer it on that assumption.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I can't answer on that assumption.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] some members of the Court or the whole Court thought it was a bill of attainder.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: The Attorney General's list is a bill of attainder?</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Yes, should they be permitted to be used in this fashion?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I think that it's still can be -- could be used because I think that -- again, we're looking towards a present determination of a character of a particular man.</p>
<p>There is no other way you can tell than by looking at his past acts.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That would be a pretty high value to put on a document that's a bill of attainder which is twice forbidden by the constitution, wasn't it?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I'm saying this.</p>
<p>I've find difficulty with your assumption to begin with as I mentioned.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I understand that.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I do say that the government has to do something.</p>
<p>The man has presented himself to be issued a special validation.</p>
<p>What is the government to do?</p>
<p>It's got to investigate the man.</p>
<p>It has got to look to his past activities and --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Or, this was just a publication in a newspaper?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Absolutely, I would disagree with you.</p>
<p>I would agree with you that that couldn't be used, but I think the government has to make --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: [Voice Overlap] then you're putting value on the Attorney General's report.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: For this purpose, I think the government has to make its investigation of two things.</p>
<p>One, what activities first, indicate that a man belonged to them and participated in them would be a danger to the government.</p>
<p>Now, whether they do that by a published Attorney General's list whether they take that action on their own which is circulated to the department -- by an agency in government makes an investigation and says that we have determined from our investigation that these organizations are engaged in unconstitutional efforts to overthrow the government.</p>
<p>With that, they had then made the determination that there are certain activities that a man if he's engaged in unknowingly, make it quite likely, that he is not the type of person who should be granted access to any sensitive position.</p>
<p>The next part of the investigation is to look -- to see if this man belonged to that type of organization and if he did, what was the extent of his participation in them?</p>
<p>Then you can come to the fact where you inform the man that we have come to a determination that you belong to these organizations which we believe are acting in a manner that would -- to take unconstitutional action to overthrow our government, and for that reason you should be denied your special validation.</p>
<p>At that point he's got the right to come back in and say, one of -- several things.</p>
<p>One, I don't belonged; two, I belonged, I did not know of its activities; three, I belonged knowing full well of its activities and you are all wrong because that is not the activity to be engaged in, and if he's got an act -- if they're not engaged at any unconstitutional activity, and he's got a right to litigate those issues.</p>
<p>So I don't think viewing the entire process that the question of where you start is necessarily determined.</p>
<p>I think the government has the right to start at some way.</p>
<p>They have made -- the government has made the investigation and has determined in its mind, that at least by face these organizations are engaged to the activities designed overthrow the government.</p>
<p>And I think that they can use that as the starting point to investigate an individual's activity to determine whether he should be granted the access to any sensitive position that he seeks.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Martin I understood you to say a little while ago that you will not question a man who's charged with affiliations in this situation.</p>
<p>I notice that the fourth or fifth name on the list of Attorney General says American Christian Nationalist Party.</p>
<p>Now suppose the man did not belong to that organization, but he did belong to the church from which the members that came and from which the organization -- the party was organized, would you say that the man have to answer whether he belonged to the church because in other -- it might -- while he was not a member of, he might be affiliated in some way with it [Voice Overlap] this item six, are you now or have you ever been a member of or affiliated with in anyway, any of the organizations set forth below.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I don't think he would have to answer that.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Why?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Because I don't think that is what is the Court's question is directed to.</p>
<p>It's whether you're affiliated with the organization.</p>
<p>It doesn't say in that context, are you affiliated with an organization that is somehow affiliated with that, because you were putting it with that organization.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes, you mean by that they could set up an organization that would include the same members under another name and they're affiliated closely with it and that if they were not on this list, he wouldn't have to answer?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: I'm not sure I follow your questions.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, you say that he would not have to mention the church that was affiliated with this organization and from which this organizations sprang, isn't that right?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That is correct.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Now, suppose concerning the Communist Party, he didn't belonged to the Communist Party but he belonged to some other organization called the XY social club, and that was affiliated with the -- in some way with the Communist Party, would you say you have to list, that one?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, that is one of the question propounded by the --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I know it is, but what I'm trying to get is how do you distinguish these two organizations that I've been mentioning to you?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, I think that when you're talking about -- certainly that question is phrased in -- if you're talking about the Communist Party, it's phrased, “Are you affiliated with an organization?”</p>
<p>I think that the -- I think if that question had been asked with respect to the church group, the Christian group that you mention then I suppose of that question would call for the answer, yes.</p>
<p>I think that [Voice Overlap] --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: [Voice Overlap] belonged to the church?</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: That's right --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: [Voice Overlap] going right back to Mr. Justice Black's question.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Then I think the answer to that is that is a question I do not have to answer, because it deals with my religious affiliation.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: [Voice Overlap] you don't have to answer of any of them, Mr. Martin.</p>
<!-- John_S_Martin_Jr--><p><b>Mr. John S. Martin, Jr.</b>: Well, you know I think that there are questions that can legitimately be asked and which a person can be expected to answer, that there are certainly there areas which go beyond, but I don't think that's we're faced within this case, and that is a position that government --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Very well.</p>
<p>Mr. Schroeter?</p>
<p>Rebuttal of Leonard W. Schroeter</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: If I may Mr. Chief Justice, I'd like to briefly answer a couple of questions and then talk explicitly about what really I think is importance suggestion as to methods by which this case may perhaps be disposed of which Your Honors have asked a number of times and Mr. Martin and I have some ideas concerning it.</p>
<p>First, relating to question that -- well, I like to first apologize to Mr. Justice Stewart.</p>
<p>I was horrified at the omission of Shelton.</p>
<p>The only apology I have is that, you really cited that fully in Cramp, and we thought we sort to covered the Waterfront by referring to an argument, very [Voice Overlap] --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Of course that was a [Voice Overlap] decision.</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: I understand.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And maybe that's a reason [Voice Overlap].</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: No, we are impressed with the reasoning and applicability of it, really.</p>
<p>Secondly, the question that Your Honor, Mr. Chief Justice Warren just asked, is similar to a question that Mr. Justice Brennan asked earlier that I just briefly like to comment upon.</p>
<p>Whatever the Coast Guard's understanding of the question was, it was Mr. Schneider's understanding and mine that it included every organization that you ever belonged to.</p>
<p>And part of the problem we had among other things is that -- or had affiliations with, Mr. Schneider's family had come over from the old country.</p>
<p>They were Jewish and they belong to a number of groups that automatically merged into the Jewish People's Fraternal Order on that list, with the (Inaudible) Society on the list, Mr. Schneider as a child had grown up in this kind of thing which was rather peculiar to Ghetto culture when Jews came over to this country.</p>
<p>Do we list them?</p>
<p>Do we not list them?</p>
<p>Did he belong?</p>
<p>Didn't he belong to?</p>
<p>We talked about what he belonged to when he was four years old don't we?</p>
<p>That's enough to drive a lawyer to drink.</p>
<p>I mean you have no idea what to advice him or not advice him, that was really perfectly horrible.</p>
<p>Mr. Justice Brennan --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: -- so horrible, [Voice Overlap] Court with the facts where it will be so horrible without telling the Commandant --</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Because that -- well, we did say and I call your attention to page 22, in my letter I said look, Mr. Schneider doesn't -- have no objections whatsoever to privately discussing his past or present political attitude, he's not ashamed of anything.”</p>
<p>I said in the letter, “We offered to go with the Coast Guard and talk to them privately”.</p>
<p>Now, the only thing they could have found out is that he belonged to the American Civil Liberties Union and the Jewish Community Center for the past 15 years, it wasn't anything we were worried about.</p>
<p>But we've done -- we'll work and say it under oath, we just felt that this was an absurd to have to write all these essays under oath, to have to answer questions that were simply not capable of being answered adequately.</p>
<p>If the Coast Guard want -- had any real question about this man, they could've asked it which goes of course to the total position of the government.</p>
<p>The government, the helpless United States government has no way to know anything about Mr. Schneider even though for five months, the FBI had had the file, even though whatever of these organizations are still alive, have more FBI Agents than they do people, for heaven's sake --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Voice Overlap] clan, do you think?</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Probably in the clan too.</p>
<p>I suspect so.</p>
<p>There's just no question, the government knows more about Schneider than Schneider knows about Schneider.</p>
<p>And for five months, they've had ample opportunity to go to their IBM records on him and talking to them, we knew they knew the whole story about him.</p>
<p>I thought the Coast Guard people, they knew everything about Schneider and they come up with this pious nonsense that he has to answer the questions so they have a basis to go ahead, that's simply factually false.</p>
<p>They knew everything about him.</p>
<p>What they were seeking to do is to make him conform by answering questions under oath that were unanswerable.</p>
<p>And if there's any question that this is still what they're up, which is what Mr. Brennan asked, what kind of question do they ask?</p>
<p>I have in my hand a questionnaire that we received two weeks ago from a man in which they say, “In 1949, were you a member of the Progressive Party of Washington in 1950 and 1951 and 1952?</p>
<p>Did you attend a bazaar under the sponsorship of the People's World for the purpose of raising funds?”</p>
<p>They asked, “Did you attend any meetings?”</p>
<p>Now, listen, “Did you attend any meetings with an official of the Communist Party, you know, give dates and places of such of meetings and what officials?”</p>
<p>Well, who knows whether they attend meetings on and on and on.</p>
<p>And mister -- it is suggested by the government that this is relevant by a set of standards that the government adopts that this is relevant to a determination as to whether the character and habits of this man are inimical for the government of the United States.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What has happened to him?</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: This particular man?</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: This man.</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Mr. Schneider or the man who got this?</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Is he back in his job?</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Mr. Schneider simply has never managed to go to sea for three years despite his deep desire to do so.</p>
<p>He is --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I thought he hadn't been to sea for about 25 years?</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: That's right as, I indicated he had decided in 1964, when his children were right on age, so they didn't mind being away from home so much, that he would ship, he has continued in a land job in which he makes substantially --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: A land job?</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Yes, which he's had, and he's some kind of --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: A stationary engineer of some kind?</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Yes, thank you.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: For the government?</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: No.</p>
<p>On a private industry, just this, this is a private industry.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Yes, I understand.</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Now, this of course -- the relevance of these questions, it seems to me is critical and it really gets to what to me is the heart of the whole case.</p>
<p>The only thing that the government and appellant I think agree about is the high desirability that you look at the entire program.</p>
<p>Now, Mr. Justice Stewart indicated we've denied cert in other case that's similar, have we not, and there are -- Mr. Justice Warren has asked questions about, “Well, can we limit this to the regulations?</p>
<p>Can we send it back and say, give the man his hearing?”</p>
<p>I suggest to you that implicit, what I tried to suggest yesterday, implicit in the heart of this program, is its defect.</p>
<p>I cannot believe that the Commandant of the Coast Guard is capable of regulating the program that would deal sensitively with the minds and hearts and feelings of people who had to go through this.</p>
<p>I don't think he is capable of it.</p>
<p>I don't think that the separation of powers would permit it.</p>
<p>I don't think that the government can device reasonably at least they've been notoriously unsuccessful, devise a program that could possibly meet the feelings of this Court about such matters.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Yes sir.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Yes sir, but the vice of the matter and this --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible] dependent to the Commandant [Inaudible] delegation.</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: I don't know who ultimately rights the regulation.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Yes.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: On the delegation of the [Inaudible]</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Right.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Not on any thing related to the delegation of the vital --</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: I don't think constitutionally, we reach beyond that.</p>
<p>Practically what happens, I don't know --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: That's your argument [Voice Overlap]</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Our argument reaches that, yes sir.</p>
<p>And with respect to that particular point, I think this Court can easily decide this question by simply saying and we have read everything in your library, Mr. Caughlan and I, that we can find, there isn't a shred of a word that suggests that in language or otherwise, a screening program, nothing in the legislative history, nothing in the executive order.</p>
<p>We don't get a screening --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Well, there was not such a program in World War I as far as I can make out.</p>
<p>If there was a program in World War II, it comes from some knowledge that is not found in the Courts of this -- the library of this Court.</p>
<p>Now, it is my knowledge from asking people not from this that there was a kind of a program but had nothing to do with the kind of program there is here, nor was it administered by the Coast Guard.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But Schneider apparently survived whatever screening there was in World War II, didn't he?</p>
<p>It's not when he was a --</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Yes, right [Voice Overlap], yes, fascinatingly at the time when he was a member of Communist Party.</p>
<p>That's the time when he was [Voice Overlap] --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, of course we were aligned with the USSR at war at that time too.</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Yes.</p>
<p>All I'm suggesting is there were some kind of a very loose form of screening program, but the heart of this is and to me the heart of the issue before this Court and it's this -- that this Court can and has said many things for many years about programs of this kind and I need to reiterate this Court's decision.</p>
<p>And this Court recognizes they are multiple ways in which you can decide this question, but is this a proper occasion, this kind of a case, for the exercise of judicial limitation?</p>
<p>I suggest not and I suggest not because the central problem of our society it seems to me is not that this Court does not articulate magnificently what the constitution is all about.</p>
<p>That isn't our problem.</p>
<p>The problem is that it is implemented in Seattle, and Schenectady, and in Albuquerque, and in Albany, we don't get the views of this Court adequately indicated.</p>
<p>We have here the last vestige really, a full-blown what is I think properly called institutionalized McCartneyism.</p>
<p>This program almost without change, despite 17 years of existence, for 17 years, this Court has more or less articulated points of view which I could spell out extensively, but I think need not which are at war with the program of this kind, yet this program in its heart permits questionnaires such as this, that is still be asked in November 1967, and it does so, not only because a program of this kind violates the concept to separation of powers essentially as it does, because it over delegates, because it may well be a bill of attainder and seeks to punish --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Have you challenged then the delegation?</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Yes sir.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: On what ground?</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: On the grounds that this is an improper delegation to the executive, from an overbroad statute which really causes -- necessitates him to answer.</p>
<p>I note that my time is up and I would simply urge this Court to view this as a totality of program, making it clear that programs of this kind -- why in the face of dealt needs of our society in terms of the maintenance of values that I think we all share.</p>
<p>Thank you.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Would you mind do that submitting to us that questionnaire that you have, with the statement as to where it was -- as to where it was used.</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Can I just hand it up to you now?</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- if there is response needed you may make.</p>
<!-- Leonard_W_Schroeter--><p><b>Mr. Leonard W. Schroeter</b>: Alright, thank you.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: We'll recess.</p>
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Thu, 23 Aug 2012 18:11:14 +000081306 at http://www.oyez.orgSchneider v. Smith - Oral Argument, Part 1http://www.oyez.org/cases/1960-1969/1967/1967_196/argument-1
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<a href="/cases/1960-1969/1967/1967_196">Schneider v. Smith</a> </div>
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Fri, 18 Nov 2011 02:28:28 +000079843 at http://www.oyez.orgSchneider v. Smith - Oral Argument, Part 2http://www.oyez.org/cases/1960-1969/1967/1967_196/argument-2
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Fri, 18 Nov 2011 02:28:31 +000079844 at http://www.oyez.orgUnited States v. Laub - Oral Argumenthttp://www.oyez.org/cases/1960-1969/1966/1966_176/argument
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<p>Argument of Leonard B. Boudin</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Do you proceed first --</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: No, I --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- in this one Mr. Boudin?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Oh, my apologies Your Honor.</p>
<p>I'm sorry, I'm so custom to being the appellant here.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Lewin, if -- you may proceed.</p>
<p>Argument of Nathan Lewin</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Mr. Chief Justice, may it please --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Could you answer -- could you respond to what Mr. McTernan just said?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: So far as the stipulation is concern Mr. Chief Justice or the reference in the --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, you might --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: -- in the -- both?</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Oh, alright.</p>
<p>Take both of them.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, let --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Its clear there's a -- it wouldn't depart very far from this case, wouldn't it?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, it wouldn't.</p>
<p>Well, the stipulation would, I'd been hoping to address myself to it and I just didn't have the time.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Voice Overlap)</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: So far as the stipulation is concern, I think we plainly concede that the statement in the stipulation that Mr. Travis did not "bear" a valid United States passport specifically endorsed to travel to Cuba could not or just standing there alone sustain a conviction if this Court were to conclude that the only way that you could violate Section 1185 would be if you had no passport at all when you left the United States.</p>
<p>In other words, if Section -- if this Court would conclude that Section 1185 applied only to departures with either a revoked or expired or no passport whatever.</p>
<p>In other words, we think that the statement in this stipulation prevents her conviction on that theory so that if we are wrong on our major argument here this Court would hold that we're wrong then we don't urge that her conviction could be affirmed.</p>
<p>We do however urge that if the Court were so to hold we should be free to retry the petitioner on that ground and we think that that's plainly within Bryan versus United States.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, in other words, we think what that would be is that would be a failure, a really quite and accidental, I think failure of proof because of the construction of the -- because of the ambiguity of a stipulation as to a particular element of the offense which the Government did not believe it had to establish at the time this trial was conducted.</p>
<p>Now, we think that's what Bryan versus United States in 338 U.S. held when it construed 28 U.S.C. 2106 to authorize a remand for a retrial and that's in effect what this Court did as to a substantial number of the petitioners in the Yates case in 354 U.S. so that so far as the stipulation is concern as I say, we would -- we concede that her conviction could not just simply be affirmed if our major position is rejected.</p>
<p>On the other hand, we do think that we should be permitted to a retrial on this indictment which simply charges a violation of 1185 pretty much in its terms and to prove at such a retrial that she in fact had only a revoked passport and therefore if she did have only a revoked passport we submit she's no better off for having travelled to Cuba then if she had gone with the revoked passport to Paris or to London or any place else.</p>
<p>The statute on its face plainly we think, prohibits that if it prohibits any.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: And do that mean that the Government because the -- of the ambiguity of a statute, I mean, interpretation of it thought that it didn't this one necessary to be proved and didn't undertake to do it that we should let the Government retry this person and supply that?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes, we think that exactly what this Court did as I say --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, if that -- there is that ambiguity so far as the Government is concerned don't you think that there might be like ambiguity so far as the responsibility of the defendant is concern?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, yes.</p>
<p>Well, we think -- we -- definitely and that's why we concede Mr. Chief Justice that she couldn't be convicted on this stipulation if our principle line of argument is rejected.</p>
<p>And we say that if it is then the most we're entitled to do is to go back and retry her and introduce that element of the offense which we did not as of the time the first trial believe we had to prove.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, if the -- don't you think there was something that didn't deliberate on the Government's part on trying it on this theory.</p>
<p>I suppose you had the opportunity if you could've proved it, to prove that she had no passport at all.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I'm sure --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And there would be absolutely -- and you say, at least the Government claims there would be no problem at all then to convict her under the statute.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: That's true.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Now, if you knew and you should say that she had an unrevoked passport and you didn't prove it, why should you get another chance to prove it?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Because we think that's really what Bryan and what Yates say that if the Government is -- has proceeded under the wrong theory of law the first time and there's no reason to believe that it simply trying a second trial in order to introduce evidence that or in order to present it to another jury if you like.</p>
<p>Then fairness and justice which is what 28 U.S., the words in it, the standard incorporate in Section 2106 really entitles the Government's fell back for a retrial.</p>
<p>I must say candidly Mr. Justice White, I don't know that this was intentionally so designed.</p>
<p>I think probably both parties at the time the Assistant United States Attorney who drafted the stipulation, Mr. McTernan believed that the issue was where the travel to Cuba was a violation of Section 1185.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, was there any mystery at all about whether or not she had a passport?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, I don't think there was any mystery there.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Good heavens.</p>
<p>I don't know why but -- oh, yes, you make it -- I'm all the way up here on this case when you should -- you say want to go back and retry her on the theory you should've had in the -- at the very first instance, very simple level.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, that's true but the way the case was tried and the way the stipulation was worded, it just doesn't present that very simple case.</p>
<p>As for the --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I suppose also that consider couldn't we that Mr. McTernan was interested in his one client and wanted to make a stipulation that on the facts that they were so, his client wouldn't be convicted.</p>
<p>On the other hand, you want to bring this case to this Court for the purpose of establishing a principle on your theory of the Act, isn't that right?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, I don't really believe that this case was designed with the view in mind that we would bring it to this Court.</p>
<p>I mean, we certainly are not the moving party in this Court, it was a conviction in the District Court sustained by the Court of Appeals and --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Add you through the years then prosecuting in this manner?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No.</p>
<p>Because of it -- but because of --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: But for great many years you had never adopted this theory and had never used it.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Because of the difficulties of proof Mr. Chief Justice that you got to prove in this kind of a statute even under our construction of it that that the traveler had the intent at the time he departed the United States.</p>
<p>And it's a very difficult burden that was established in this case and in Laub, the Government had such proof.</p>
<p>If I -- and then if I may just respond Mr. Chief Justice in Mr. McTernan's comment that 18 U.S.C. 1544 is noble and was not cited in response to the Senate Committee's question.</p>
<p>The answer at least so far as it appears in the hearings on page 59 specifically does cite 18 U.S.C. 44.</p>
<p>The Department of State responded that there are laws in which might well be violating the course of such travel, e.g. trading that the enemy act and treasury regulations there under, 18 U.S.C. 1544, etcetera.</p>
<p>So, it was specifically cited at that time and it appeared in the passports.</p>
<p>So, I think it's quite clear that this other statute is not a noble creation of the Department of State just raised for purpose of this case.</p>
<p>Turning to the Laub case, that case is here on direct appeal pursuant to the Criminal Appeals Act from a dismissal of a one count indictment charging nine appellees with conspiring to violate Section 1185 by inducing and recruiting a group of individuals to depart the United States for Cuba without bearing passports valid for travel to that destination.</p>
<p>In this case, unlike Travis the status of the traveler's passport is clear.</p>
<p>It was made so by the Government's bill of particulars which alleged that all the persons referred to in the indictment, in other words those who were traveling posses during the relevant period unexpired and unrevoked United States passports which however had not been specifically validated by the Secretary of State to travel to Cuba.</p>
<p>So, this case does not involve the ambiguity presented in Travis.</p>
<p>Two of the appellees here, Laub and Luce (ph) were also named in a companion indictment which charged them and two others with having arranged an earlier similar trip to Cuba one year prior to the trip involved in this indictment in June 1963 and with having made trips to Cuba in violation of Section 215 (b).</p>
<p>The defendants in that case except Luce were tried in the Eastern District of New York in a non-jury trial at the conclusion of which the District judge found them all not guilty.</p>
<p>His opinion in that case which contains extensive factual findings and an elaborate discussion of a law was incorporated by reference since the judgment of dismissal in this case because the grounds of this -- for dismissing the indictment here were identical to his grounds for entering a verdict of not guilty in that case.</p>
<p>The judgments in both cases rested on the District judge's conclusion that Section 1185 (b) did not cover departures for destinations on which travel restrictions have been imposed.</p>
<p>The judge in the present case in other words agree with the principle contention made by the petitioner in Travis that Section 215 (b) is only a "border control statute" ends the question of statutory construction squarely presented.</p>
<p>Now, I find and I'd like to continue along that line in discussing what really was the major thrust of the District judge's opinion, the District Court's opinion in this case and of the claimed made by the petitioners which is -- and this relates back to a question of Mr. Justice Harlan's yesterday, "What the administrative practice of the Department of State was?"</p>
<p>Now, the District Judge here found and petitioners have argued in Travis and the appellees have found -- have argued here that it was a Department of State's continuous position up until travel restriction were posed in Cuba that the restrictions put in to the passport as to the invalidity of the passport to travel to certain destinations were civil only and contemplated no criminal sanctions.</p>
<p>Now, as I try to explain in the earlier argument -- in the Travis case, the real difficulty here arises out of the fact that there are two criminal statutes which might apply to travel to restricted areas.</p>
<p>One is the one which prohibits use of a passport in violation of its terms and conditions and which would be violated therefore if the traveler in the foreign country used the passport to enter the country, showed it or in some other way exhibited it.</p>
<p>That's 18 U.S.C. 1544 and we submit that it's quite clear from the administrative practice that the Department of State had always viewed that statute which applies both in peace time and in war time as applicable when there is proof of use.</p>
<p>Now, petitioner or the -- and the -- petitioner in Travis and the appellees here and the District judge below relied on certain statements made by the Department of State in 1919 and 1952 and in 1957.</p>
<p>I think those really do not support the conclusion that the Department of State was in effect disavowing criminal sanctions for violations of area restrictions and I'll get to that in a minute.</p>
<p>But I would also like to call attention what is quite clear and what is not been cited out below and it was -- it's not cited and discussed in our brief either but it's quite -- what is quite clear is a press release for example issued or press release issued at the outbreak of World War II in September 1939 where the Department of State announced that passports which are therefore been issued would not be valid for use and travel from United States to any country in Europe unless it is submitted to the Department of State for validation.</p>
<p>Now, that announcement which appears at page 534 of Hackworth which is cited in our brief and in the volumes cited in our brief and in the briefs in Travis and Laub and by the District judge also says the same thing as the passports themselves said which is, should a person to whom a passport has been issued use it in violation of the conditions or restrictions contained therein the protection of the United States may likewise be withheld from him while he's abroad and he will be liable for prosecution under the provisions of Section 221 of Title 22 of the U.S. Code which reads in part and then it quotes that statute.</p>
<p>In other words, the very press release that announced that there -- restrictions would be imposed prior to World War II specifically referred to what is now 18 U.S.C. 1544.</p>
<p>Now, it's true that the Department of State did not at that time refer to this statute.</p>
<p>The very simple reason is that this statute was not on the books.</p>
<p>Its predecessor was not on the books either.</p>
<p>This statute was enacted in 1914 to apply only in time of war.</p>
<p>It was reenacted in 1941 to apply in time of war and during the national emergency which have been declared by President Roosevelt in May of 1941.</p>
<p>It was reenacted in 1952 to apply in time of war and during any national emergency.</p>
<p>Well, the time that restrictions were imposed prior to World War II, Section 1185 or its predecessor which just not a viable statute.</p>
<p>Now, the District Court below or the petitioner in Travis and the appellees here point to really three statements, public release as issued by the Department of State.</p>
<p>One was the release issued in 1919 when hostilities were over and which did not refer to any criminal sanction.</p>
<p>Well, that's true.</p>
<p>I mean it certainly didn't refer to the predecessor of Section 1185 because 1185 apply only in time of war and it was very questionable whether it could've applied then.</p>
<p>They also rely on the press release issued in 1952 when restrictions were imposed on travel to iron curtain countries.</p>
<p>But 1952 was two years after President Truman had announced the -- a nation -- a new national emergency in 1950.</p>
<p>The Act passed in 1941 was no longer applicable at the time the new area restrictions were imposed.</p>
<p>The Act passed in 1941 applied when the United States is at war or during the national emergency announced in May of 1941.</p>
<p>By 1952, the United States was not technically at war and the national emergency announced in 1941 had been superseded by the national emergency announced in 1950.</p>
<p>So, obviously the restrictions imposed in 1952 could not have made any reference to the statute enacted in 1941 because it too was not a viable statute at that time.</p>
<p>A month later after the imposition to travel restrictions then, the statute involved here was enacted in that provided that it was to apply that in times of war and in times of national emergency and of course that statute was applicable thereafter.</p>
<p>It was not specifically cited in the -- or specifically listed in the passports, the other statute was 18 U.S.C. 1544.</p>
<p>But the fact that the Department of State did not refer to this statute or its predecessors in the 1919 release, on the 1952 release we think doesn't establish anything because neither or it certainly quite arguable that neither of those statutes was applicable at that time.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I'm not sure that I follow you Mr. Lewin, forgive me.</p>
<p>I take it that your argument is that some importance should be attached to 18 U.S.C. 1544 despite the facts that that is not a statute under which this was brought, number one, is that right?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes sir.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Number two, that if -- and despite the fact that 18 U.S.C. 1544 is confined to prohibition of the use of the passport in the country that has been entered and we have nothing before us here to indicate that that is what petitioner in Travis or the appellee or whatever it is here did, is that right?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes sir.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: But so that 1544 is somewhat remote from the particular issue; I take it that what you're saying is that 1544 is useful to your cause because of the very fact that it indicates that with respect to predecessor action, the State Department gave warning of some kind of criminal penalty was attached to some kind of activity relating to passports which didn't cover travel to particular countries.</p>
<p>And that about all it amounts to, --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Oh, I think --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- have I missed something?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Oh, I think it's a little bit more than that.</p>
<p>I think what it does is it rebuts the claim that the Department of State has always which is very basic to what the District judge here found and what the thing argued in this case in the prior case that the Department of State had always viewed these restrictions as being civil only and not (Voice Overlap) --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, that these restrictions so that's where your -- that's where one of the (Voice Overlap) --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Area of restrictions.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- because the question is whether these restrictions means the use of the passport, means the area restriction in respect to the use of the passport or the area restriction in terms of travel to the restricted area.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, we think that definitely a difference there but it -- we think that what it does show is that the legend on the passport that says not valid for travel to particular countries.</p>
<p>It was always supposed by the Department of State to be enforceable by criminal sanction and that if the passport indeed had not cited any statute at all but had merely said these restrictions are enforceable by criminal sanctions.</p>
<p>In other words, it left it quite ambiguous as to what the criminal sanctions were or what could permissibly be done then I think they -- would certainly be no basis for the argument that petitioners are making or the -- petitioner makes in Travis to the appellees here that they weren't put on notice that there was any criminal sanction attached to area restrictions.</p>
<p>We're saying in other words, that Congress really armed the Department of State or the executive in the enforcement of these kinds of restrictions with two strings to the bow that because most instances of area restrictions, first of all, area restrictions in peace time and area restrictions as to countries with whom we did have diplomatic relations and a substantial number of area restriction that go -- did involve countries with whom we had diplomatic relations and where a passport would be used.</p>
<p>So because the substantial number of violations of those would probably be covered by 18 U.S.C. 1544 the Department of State focused its attention on that statute but there was really another string which Congress have provided and we just don't think that the executive should be prohibited from using the second string simply because it's been given an addition to the first and its mainly when it provided warnings in the passports which referred to the first.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: What would you -- what do you think of the press in Eisenhower, a special message to the Congress to requesting that clear statutory authority to prevent Americans from using passports for travel to areas where there's no means of protecting them or where they're presence would conflict with our foreign policy objectives are being amicable both to the security of the United States should be passed.</p>
<p>That's -- that was after Kent versus Dulles and that -- and the Congress didn't pass any such laws nor have they since?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Now, what do you think of that so far as understanding of the effect of this?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I think that it certainly demonstrates two things I think Mr. Chief Justice.</p>
<p>It demonstrates that a proposition which we have never contested which is that the present law has substantial loopholes.</p>
<p>An individual who leaves the United States without the intent to go to Cuba and let's say who then goes to Cuba having informed that intent somewhere else is -- violates no statute because he doesn't use his passport, he doesn't depart with the intent of going to Cuba and therefore he's violated no statute.</p>
<p>And I think a mandatory legislation is necessary for that reason.</p>
<p>But I think it also --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: But the President -- did the president point that out?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I don't think he pointed that out specifically but I think that the testimony --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Did the Department of State point out to the Congress that that's what they wanted to --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- wanted to do --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I think testimony --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- flood those loopholes?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I think to testimony yes, before the hearings at that time and to hearings continuing to this very day on similar kinds of legislations is repeatedly pointed out these loopholes.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Is that in your brief?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, we have not cited it in our brief.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Why?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, we -- I gather -- at the time we wrote the brief I suppose we just -- either just overlooked it or didn't put it in but we could provide the -- provide that additional (Voice Overlap) --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Won't you think it was rather important if you relied on it?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, we think -- we're Mr.-- really Mr. Chief Justice what it goes to is it -- it's a sort of a surrebuttal, it's an answer to the claim that the executive must have thought that this legislation didn't cover it because he proposed other statutes and we submit that we -- well, for one thing we agree that there were loopholes and that other statutes are necessary and I was going to say a second thing in answer to your question which was that we don't doubt and I don't want to be mistaken today.</p>
<p>I'm thinking -- we admit that the statute is not as clear as the Department of State would like to see it or as the Department of Justice would like to see it.</p>
<p>We think that it's important and I think the testimony before these committees has also focused on that.</p>
<p>It's important to have statute which would say in just precisely so many words that any citizen who enters an area to which travel has been restricted commits a crime.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: It would help, wouldn't it?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: It would help, yes.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Don't you --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We agree with that.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Don't you think that the President when he sent this message to Congress was speaking the minds of the State Department?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes.</p>
<p>Yes, we think he was, definitely.</p>
<p>And we think the State Department feels it would help to have him a clear statute then the statute which is now on the books.</p>
<p>I think the only difference really is that we think the statute now on the books does and that's our position in this case does cover the states as well.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: Mr. Lewin, did the City Bar Association report ever get to -- officially before the Congress or the Foreign Relations Committee or before the State Department?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I've never seen any official recognition of it but I'm sure it's -- it is a --</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: You would probably (Voice Overlap) --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I pretty don't know a pretty well-known report and -- I'm sure that those who were involved with the problem have perhaps seen it and have read it.</p>
<p>And it -- indeed Mr. Chief Justice I think that also bears on the reasons why the mandatory legislation may very well consort that if a committee such as that thought that the Department of State in effect conceded that there were no criminal sanctions the Department of State then felt it was obligatory to seek a legislation and we could make that clear.</p>
<p>Now, I would just like to go to one final point which is a point that the District judge here rely on and he said, "Well, why Congress really intended to make it a crime to violate area restrictions, why was that not specifically spelled out in the statute."</p>
<p>And I think that there are really two possible -- we really have two answers to that.</p>
<p>First of all, specifically spelling out in this statute that area restrictions will cover and that would be a violation of this statute to travel in violation of an area restriction would by the rule of construction of exclusio unius exclusio alterius possibly lead to a court's ruling that any other restriction on the validity of a passport might not apply.</p>
<p>And as I've tried to demonstrate the Secretary of State finds it necessary to impose other restrictions on validity such as the restriction in the official passport to its being restricted to official use only or even the restriction that a passport is not valid until it is signed, that its not valid if it's mutilated.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, that drafting problem has been solved in our history, isn't it Mr. Lewin?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Oh, it has.</p>
<p>But the -- but I think that that's just one possibility.</p>
<p>I think Congress may have thought -- it wanted to give broad powers without presenting these problems.</p>
<p>I think another problem really was that as of that time it may very well have been dubious as to whether Congress could constitutionally enact the statute that would make criminal a conduct which is engaged in totally without the jurisdiction of the territorial jurisdiction of the United States.</p>
<p>It wasn't until 1922 when United States versus Bowman in 260 U.S. that this Court first -- not even in a square holding met that contention had said that it would be permissible and it wasn't until 1932 in the contempt case of Blockburger versus United States in 284 U.S. that that was squarely decided by this Court.</p>
<p>So, I think there have may very well have been substantial doubts even back in the 1918 as to whether a statute could be enacted that said, if you travel the country "X" in violation of the Secretary of States -- in violation to Secretary of State's restrictions in his passport, in your passport, you've committed a crime because then just the mere act a crossing that boundary would've been the crime.</p>
<p>We think that the Congress in 1918 which had the problem before it for the first time and which later Congress has adopted really knew of the Department of State's policy of restrictive endorsements as of war time and when they enacted a war time statute but they intended at that time to say was that such restrictions of the Secretary explicitly imposes in his passport are restrictions which if a traveler departs in violation of them with the intent to violate them, he is violating the criminal law.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Boudin.</p>
<p>Rebuttal of Leonard B. Boudin</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Mr. Chief Justice and may it please the Court.</p>
<p>Before I begin my brief argument in chief, I do want to make reference to what counsel has just said.</p>
<p>It appears here that a good part of his case depends upon the construction of Section 1544 with which none of us here have been prosecuted.</p>
<p>And it appears also that the persons who have the greatest knowledge of the meaning of the statute presumably a correct knowledge that the statute is not applicable could avoid prosecution and that those who like the defendants in these cases who don't have the expertise as counsel has suggested should be subject to prosecution.</p>
<p>The fact is that everybody in authority in the State Department and I mean everybody that our briefs will show has agreed that Section 215 is not applicable to area restrictions.</p>
<p>And that the area restriction provision comes under a different heading of the State Department's power, the power of the Foreign Relation.</p>
<p>And that this view which has been expressed by chiefs of the legal division of the passport office and we have cited by the Directors of the Bureau of Security and Consular Affairs whom we have cited is uniform.</p>
<p>And I may say has been subscribed to by another great Solicitor General, one who argued Kent against Dulles who said in talking about passport restrictions, and I'm from reading his brief which we have cited that this restriction, the power to impose area restrictions would carry no sanctions, I repeat, no sanctions.</p>
<p>Since the statute referring to Section 215 or 1188 makes it unlawful only to depart or enter the country without a lawful passport.</p>
<p>And I may say that -- some urge we cease the controversy, allow the controversy between the defendant and the Government is really a basic controversy between the State Department and the Internal Security Division of the Department of Justice because the State Department knowing of the 600 old law cases over the years has never suggested so far as the record show a single prosecution and it was only until the Cuba problem arose that a prosecution was decided upon.</p>
<p>Now, we are here for the third time in eight years arguing the meaning of 1185.</p>
<p>And the only difference between this case and the others is that we're here confronted with a criminal proceeding which the problems are the construction of a statute, a so much serious and so much more obvious.</p>
<p>Although what Mr. Justice Douglas said in Kent against Dulles cast -- light upon this because he recognized the nature of the statute as one involving an impairment of civil liberties and also the fact that it was a criminal statute.</p>
<p>Now, bearing in mind that this is a criminal statute, how does the Government which has the burden of showing that this statute not 1544 is applicable to these clients.</p>
<p>How does the Government treat this important problem?</p>
<p>It says with respect to the statute upon which it relies in this case, 215 (b), that's 1188 does not in so many words, I thought words were what governed that is not in so many words prohibit violations of area restrictions.</p>
<p>And it says in another place in his brief, I won't take the time to give the pages up since they're all in my brief and in the Government's brief.</p>
<p>Section 215 (b) was not as explicit in prohibiting violations of area restrictions as it might be.</p>
<p>It's not a diplomatic problem.</p>
<p>This is not a letter of introduction.</p>
<p>This is a criminal statute we have here.</p>
<p>Well, let us suppose that the statute is not clear and let us assume although I think its not proper in a criminal statute that the Government can turn to legislative history thus rely upon it.</p>
<p>How does it describe the legislative history which is voluminous I may say?</p>
<p>It describes it at his brief at page 20 as amici.</p>
<p>Well, perhaps legislative history is missing, can the Government show a different purpose from other evidence.</p>
<p>No, the Government says, the debates do not show and I quote, "Any awareness of the problem, the problem of area restrictions", has it ever occurred to the Government that the debates don't show any awareness because this is not the problem with which Congress was concerned in 1918 and in 1941 when this whole matter was debated fully.</p>
<p>Well, let us assume that all these tests are wrong and we must turn to the administrative interpretation of the statute though I would not of course agree that absent, legislative support, even the State Department could admit it to the statute in a way contrary to law.</p>
<p>As to Section 215 (b), what does the Government say?</p>
<p>It says 215 (b), it says the Department has not called this application, this criminal application they're talking about, to public attention as much as it might have.</p>
<p>And State Department officials have occasionally, I say uniformly, have occasionally suggested that no criminal sanctions lie behind the Secretary's area restrictions.</p>
<p>And as to the press release of May 1952 which the Chief Justice adverted upon which the Bar Association made a comment and I may say that the Bar Association had a committee, had as a member Mr. Adrian Fisher who was legal adviser previously to the State Department and is a well-known scholar in this field.</p>
<p>After this press release issued by the Department of State, the Government describes it as quote, "somewhat ambiguous".</p>
<p>And by the way counsel is wrong when that press release was issued in 1952, there were in effect still the Act of 9 -- the provisions of the Act was 1941 as continued by Congress until the Immigration Act could be passed.</p>
<p>And as to the testimony which we have referred to in our brief of all of the Department officials testifying on the subject of area restrictions, what does the Department of Justice say about the Departmental officials from the State Department who were authorized to enforce and to implement and to administer this passport law plainly unsound.</p>
<p>Now, we don't have to rely --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: What was that last --?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: That plainly unsound at page 36 is what the Department of Justice says in its brief as to the Department of State's view that area restrictions are not enforceable criminally.</p>
<p>And of course it is the Department of State that is supposed to administer passport laws and to put valid or not valid or restricted stance in passports.</p>
<p>I suppose and since it's a criminal case I could rest upon what the admission, about the admissions made by the Government but the admissions are made because there is voluminous evidence to support us in this statute.</p>
<p>There is a language of the statute, a statute that talks about departing and entering, referring to the borders of the United States, not the borders of Cuba or China.</p>
<p>There is the fact that the Congress has always been able to write a clear statute when they wanted to prevent people from going to particular areas and we have referred to a number of instances in our brief which I will burden the Court with now which when Congress said, "We don't want you to go to Indian territory, it said Indian territory", when it said, "We don't want you to go into enemy territory", it said enemy territory.</p>
<p>We don't have to look to the past to find the ability of Congress which is perfectly obvious to meet the problem if there is a problem.</p>
<p>The bills which have been proposed since 1957 beginning with the bill proposed by the commission on Government's security with Congress and Walter was a member.</p>
<p>The proposals made by the President, President Eisenhower and by Secretary of State Dulles, the proposals which were made as recently as a few months ago by the Department itself from the Hayes Bill to which had -- the attention of the Court was called yesterday by Mr. McTernan.</p>
<p>All of these bills state very clearly in two --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: The substance of the 66 bill as proposed by the Department of State introduced by Mr. Hayes is that the Secretary of State with the approval of the President can make it unlawful, can declare certain areas out of bounds.</p>
<p>And that a violation of those restrictions is then criminal.</p>
<p>That is proposed by a revision of the passport laws which is consistent with the Department's theory that area restrictions don't involve national security but involve foreign affairs, political matters and so forth.</p>
<p>In contrast, there is an equally explicit bill, Mr. Justice Harlan which goes to another line of authority and that is an amendment of Section 215, that is an amendment of the very statute we're talking about which would make explicit a violation of area restriction and this is the proposal that from 1957 to date has been made by a large number of Congressmen so that -- sorry.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Are those bills referred to in your brief?</p>
<!-- Leonard_B_Boudin--><p><b>Mr. Leonard B. Boudin</b>: Those bills are referred to in Mr. McTernan's brief and in my brief.</p>
<p>Now, we have set forth the legislative history of Section 1188 and the predecessor bills in our brief.</p>
<p>I cannot take the short time I have to develop but let me say that I owe again a great debt to the Solicitor General, Mr. Rankin who developed this whole legislative history fully intent against Dulles in his brief.</p>
<p>We have again put it in out brief here and it's in the brief in Zemel.</p>
<p>And what it shows essentially is that the United States Government upon the suggestion of President Wilson in 1917 was concerned not about what might happen in terms of American citizen being injured abroad, a conflagration there.</p>
<p>The stuff that is now talked about these modern days when we try to rewrite a statute what President Wilson was concerned about and that Congress misspoke of 1918 and 1941 was to seal the borders of the United States against aliens, neutral aliens who may suspected by -- be crossing to commit sabotage and espionage and against American citizens.</p>
<p>And repeatedly in this meager legislative history as it was referred to we have references to espionage, subversive activity, ingress and egress not a word it said about area restrictions.</p>
<p>Not a word and this is again an example of a tail -- wagging the dog it was referred to but in another sentence by Mr. Justice Black yesterday when the Government refers to the instance of Canada as a sort of area restriction because another country has been named, it assumes as an area restriction, that was not a restriction.</p>
<p>That was for the purpose of being sure that Canada could be treated that it was part of the United States, a non-restriction so that American could go across the border without having any passport not with having passport validated for travel for Canada, without having any passport at all.</p>
<p>Now, I've indicated in our brief, the absurd results that was followed from the Government's attempt to change this statute into an area control statute.</p>
<p>One example is this, a man leaves the United States intending to go to Cuba.</p>
<p>He commits the crime when he passes the border of the United States if you adopt their construction of the statute.</p>
<p>The man however doesn't want to go to Cuba but he goes to France and while on France he decides to cause his great conflagration by going to Cuba himself and giving the Secretary of State all these problems.</p>
<p>He goes to Cuba.</p>
<p>No problem at all.</p>
<p>Well, its -- this is only a little example of how absurd the whole situation is because you are attempting to take a statute intended for one purpose and put it into another.</p>
<p>This whole question of the needing of term valid of course no matter what they -- we say or they say about what valid means we have to consider valid as to what.</p>
<p>Now a -- that a passport is valid within the extreme of cases going under 211 (a) or 22 U.S.C. valid in the sense that it is a letter of introductions then discussed.</p>
<p>It was the old conception of the passport.</p>
<p>It's not dead, happens not to be practically as important as the exit and entry one.</p>
<p>And from that point of view a passport is valid or invalid.</p>
<p>But when we are talking about a valid passport within the meaning of a departure and entry statute we mean valid for the purpose of crossing the American border, that's what valid means.</p>
<p>And as a matter of fact it is the construction given by the Department itself in the passport handbook which we have cited in our brief and which says that validity -- I'm paraphrasing, refers to the duration of the passport.</p>
<p>And Your Honors will recall that when before the Senate Committee on Security and Consular affairs, passport officials were asked what the meaning of the term "valid" was, what was their answer?</p>
<p>Said the Chief-of-the-legal division as he then was, "Well, in effect that says this Government is not sponsoring the entry of the individual into those countries and does not response to the entry of the individual into those countries and does not give him permission to go in there under the protection of the United States".</p>
<p>Not a word about criminal prosecutions that I must that the line that has been read here really does not represent in my view ascriptions as the departmental official, a fair reading.</p>
<p>I can find nothing in this volume or anything else supporting the Government's construction because it was not the construction of the State Department and never has been.</p>
<p>And as the present acting Bureau later Bureau Director of the Bureau of Security and Consular Affairs pointed out from his point of view, we've cited it, it's in our brief, passport validity and restrictions all relate to this subject of Foreign Affairs under the 211 (a) problem not under the departing and entering concept.</p>
<p>Now, we come to the administrative implementation of a statute and as to that as we show Your Honors never under the Immigration and Nationality Act or its predecessor statutes of 1918 and 1941 was there ever a proclamation, an executive order, a State Departmental regulation referring to area restrictions authorizing area restrictions that of course we know taking the other side of the coin never when area restrictions were imposed by the Secretary of State where they impose except under the heading of an alleged injuring power or a passport act where there was a -- an Act of 1926 or a prior Act.</p>
<p>These are the two lines which have to be kept into consideration in analyzing what we're talking about.</p>
<p>Now, I pass over the various statements that have been made by the Department.</p>
<p>I call the Court's attention to the fact that even in Zemel in the District Court as the record at -- record 63 will show Your Honors, the Government's position, the Department of Justice's position was that the area restrictions were under 211 (a) and not under 1185, the statute involved in this case.</p>
<p>With respect to the need for a legislation let me say a word, of course a proposal that has been made by a governmental department doesn't prove, it doesn't have the power.</p>
<p>But what shall say here when there has been this avalanche of proposals made by the Department of State and by Congressmen, sympathetic with it or not sympathetic with it to give the Department of State this particular kind of power.</p>
<p>I don't understand the explanation as been given that perhaps somebody thought the Department had the power or perhaps they disagreed with the extent of the power that the Department wanted because the bills were sufficiently varied to take into consideration every possible contingency.</p>
<p>The fact is and this is one of the interesting facts of life that despite the foreboding of the Department of Justice in Kent against Dulles, the Department never, the -- was able to get the authority to turn Kent against Dulles back although clearly the Department doesn't have the power to deny passports, the people on political grounds.</p>
<p>And so here, the Department has not been able to persuade Congress to give it this power now sought for nine years.</p>
<p>We think that what Mr. Justice Frankfurter said in the (Inaudible) case is applicable.</p>
<p>This practical construction of the Act by those entrusted with its administration is reinforced by the administration.</p>
<p>I'm paraphrasing one word, unsuccessful attempt to secure from Congress an expressed grant of authority.</p>
<p>And that explains not inadequacy in writing a brief, that explains why we have the Government's brief in this case Mr. Chief Justice because this is all there is.</p>
<p>The Government is unable candidly to find anything in this statute which would justify its application and I think even in the civil statute talking about 1185.</p>
<p>Now, this construction the Government seeks is of course also, one, which would pose directly the questions put by Mr. Justice Black namely, "Is the statute a clear statute and where are the legislative standards?"</p>
<p>I take from my authority if Your Honors who have seen throughout this argument the Department of State and I think that what Mr. Philip Heymann, the present Acting Director of the Bureau of Security and Consular Affairs and a well-known scholar said very candidly that the Department isn't interested in problems of litigation but in getting things done and in stating the problems fairly to the Congress.</p>
<p>What Mr. Heymann said in the hearings we have cited in our brief is we agree with the need to provide clear statutory authority for the imposition of necessary area restrictions and appropriate enforcement provisions.</p>
<p>And he said, in the present view held either before or after that.</p>
<p>In other words, right now we have broadly worded authority to do whatever we want and very sloppy statutory authority to enforce what we do.</p>
<p>Well, I think it has been demonstrated by all of counsel here that the authority is so broadly worded as to be meaningless if we are to interpret 1185 as the Government suggest and Mr. Heymann never suggested 1185 to be used here and obviously to say that there are sloppy statutory authorities to enforce what we want here is equally appropriate.</p>
<p>And Mr. Heymann then addressed himself to the second problem that was discussed here by Mr. McTernan, the questions of standards because we are dealing here, if the Court pleases with an Act as I think Mr. Justice Black pointed out by an Undersecretary of State for Administration and I may say the new regulations that came down a short while ago that we referred yesterday by a deputy, Undersecretary of State for Administration.</p>
<p>So we're moving down the ladder now as we regulate the conduct of citizens suppose to affect their criminal status.</p>
<p>Mr. Heymann said on the subject, as you know the Secretary's authority to restrict travel has until now been exercised without any legislative enacted standards and required procedures.</p>
<p>One of the important purposes of the proposed State Department bill is to provide congressional standards for the restriction of travel.</p>
<p>Well, I suggest that until we have carried out Mr. Heymann's proposal and have a statute that is precise and had one that has standards and until we have had a statute that is clear and there has some legislative history behind it to support the Government rather than this multiplicity of evidence against it that the prosecutions could wait.</p>
<p>Thank you Your Honor.</p>
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Thu, 23 Aug 2012 18:10:58 +000068319 at http://www.oyez.orgTravis v. United States - Oral Argument/cases/1960-1969/1966/1966_67/argument
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Case:&nbsp;</div>
<a href="/cases/1960-1969/1966/1966_67">Travis v. United States</a> </div>
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Related Transcript:&nbsp;</div>
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Transcript:&nbsp;</div>
<p>Argument of Cheif Justice Warren</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: Levis Travis, petitioner vs. United States.</p>
<p>Mr. Learned Hand, you may continue.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Mr. Chief Justice, may I please the Court.</p>
<p>Yesterday, before the recess, the Chief Justice asked me whether or what the police of the Department of State was with regard to newsman traveling to areas on which geographic restrictions had been imposed by the Department.</p>
<p>I’ve been advised that at least since 1957 it has been the unexceptional rule that these Departments apply in all cases that bonafide newsman representing the established news media will be given authority on request to travel on these areas.</p>
<p>Prior to 1957, that was the rule as to all areas other than Communist China.</p>
<p>And as far as Communist China is concerned, travel was almost completely restricted to that particular country.</p>
<p>Returning just briefly to the question of the construction of the statute on his face, our contention, our view that Section 1185’s provision that a traveler departing the United States must do so with a valid passport includes in that rule.</p>
<p>The fact that the passport must be valid to the country for which he is going is based not merely on the fact that the Secretary has so said and has applied that rule as it were extraneously to a passport.</p>
<p>We think that the destination of a traveler is really of the very essence of what a passport has historically has been.</p>
<p>The fact is that, the historical function of the passport has this Court recognized just long ago was Ersytechqui vs. Darse in 9 Peters is, as the document addressed by the Government of the United States to the Government of far nations, advising them that the bearer is a citizen of the United States and requesting that he be granted courtesy and safe travel in that foreign country.</p>
<p>If a passport is not valid and it’s so marked as being “Not Valid” to a particular country, it is in effect no communication to that country.</p>
<p>It’s not the Secretary of the State addressing the responsible officials there.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, Mr. Learn Hand, the problem here is, this is criminal prosecution, isn’t it?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Yes, sir.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Now, there has been this very least ambiguity in this situation for good long time and when did the Department start using area restrictions?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: I think the first area restriction was really imposed way back in 1915 or really 1914 with regard to -- at the outbreak of World War I when –</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: There’s no criminal penalty then, was it?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, I would like to develop may be more so on the succeeding case really the fact that there was a criminal penalty.</p>
<p>The problem so far is the administration of the statute is involved, Mr. Justice Fortas.</p>
<p>The other side of the fact that they were in effect two criminal statutes enacted both of which cover various forms of violation of area restriction.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Now, we’re dealing now on statute passed in 1952, is that right?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Yes, but it is a substantial re-enactment of the statute passed first on 1918 and then in 1941, both dealing specifically with war time situation.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, in any of that, whether it’s back in 1915 or 1952, we have a situation here where they spend some -- I should think reasonable mind would have to use certainly one of them when – can seen that there’s an area of doubt about the criminal penalty that the authorization or criminal penalty in these circumstances.</p>
<p>I think we were told that in May of this year, a bill wasn’t reduced to remedy that petitions, that ambiguity.</p>
<p>Is that the first bill that’s been introduced on the subject?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: No.</p>
<p>There had been a substantial series of bills, the Travis Brief, the petitioners Brief in this case cites almost 30 which were introduced between the 85th Congress and this past Congress.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, how would you characterize the reason why none of those has been passed?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: I would say very likely the reason why is that, the Congress may be does not want to go further than existing legislation in that area.</p>
<p>And I think also realistically of there are all sorts of statutes that enter into why a bill wasn’t passed.</p>
<p>I think this Court has said on many occasions that the fact that Congress doesn’t pass the bill is no indication of a legislative intent.</p>
<p>But I do think, if it were true that the bills proposed did no more than the, we say the existing law, does then I think there would be substance to petitioner’s argument that the proposal of those bills was an indication that the Departments involved believed that that existing legislation didn’t cover this problem.</p>
<p>But the fact is, Mr. Justice Fortas, that the proposed bills do substantially more than existing law does.</p>
<p>Under existing law there were two criminal statutes involved, One is 18 USC 1544 which makes it a crime to use a passport in violation of its conditions.</p>
<p>And that was enacted in 1917; the second criminal statute involve is the statute involved here, Section 1185.</p>
<p>What those two statutes require is proof under 1544 of use of the passport which is generally not true in cases of travel to countries which we have no diplomatic relations because in the passports it’s not just used in order to enter that country.</p>
<p>And what this statute require, the present statute, 1185, is proof of an intent to go to that country at the time of departure.</p>
<p>Now, a petitioner contend that the fact that they’ve been close to 600 violations of area restrictions prior to the bringing of these prosecutions indicates that the Department of State did not believe or the Department of State in Justice did not believe that this was a criminal statute that was applicable.</p>
<p>But the fact is, this statute applies to a very few cases.</p>
<p>It applies only to cases where we can prove intent as of the time of departure.</p>
<p>Now, that’s very difficult when you’re dealing with travel, let’s say to Communist China.</p>
<p>We can’t prove that the man, who travels to Communist China, was ordinarily has that intent at the time he departs the United States and because of the problems of proof, both in this statute and in 18 USC 1544 that this amending legislation has been proposed.</p>
<p>All these, I think all the bills which are listed in Mr. Travis Brief.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: You’re not telling this, are you, that this statute is not entirely clear?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: No, I’m not, Mr. Chief Justice.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And that it is entirely clear that a criminal penalty may lawfully be imposed in these circumstances?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, so I --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: What I am asking about is, why that being so evident, so palpable at least it seems to me, the Government of the United States, States Department of -- Department of Justice have more than jointly having gone the Congress with the simple bill to try to ascertain what Congress really thinks about this.</p>
<p>I mean, what they really want to do.</p>
<p>Because as a matter and, I’ll stand, you are asking the Court really to – in fact this is not a statement – be allowed.</p>
<p>The Government, the Department of the Government because of the powerful ambiguity to say the least in the statute and when we’re dealing in the area of criminal jurisprudence.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Just to answer the first portion of your question, Mr. Chief Justice Fortas, we have gone the Congress and the statute which Mr. McTurn cited in response to Mr. Justice Harlan question was the latest proposal at the Department of State recommended.</p>
<p>Now what that statute does, which the existing laws do not, is that it simply makes it a crime to enter an area where to which travel is restricted.</p>
<p>But we think, although its true that the status in its face is not as clear as it might be, we think that passports have, for substantial period of time, been advising those that bear it and those to whom it’s issued that they are not valid for certain destinations.</p>
<p>And, the passports have in fact been referring prior to that Cuba Regulations of 1961 to this other statute, 18 USC 1544.</p>
<p>Because when dealing with countries that are far really from the United States as Communist China and some of the others to which travel was restricted, I think it could very reasonably, been supposed that it would be almost impossible to prove the intent which is required under Section 1185.</p>
<p>Now, the statutes have -- the passport statute have since 1941 borne the legend on the last page that “anyone who attempts to use the passport in violations of the conditions or restrictions contained therein, may have the protection of the United States withdrawn from him while they continues to reside abroad and they be liable for prosecution under the provisions of Section 221” entitled “22 United States Code” which is 18 USC 1544”.</p>
<p>In other words, the Department of State was never suggesting, as petitioners are arguing, that this was merely enforceable by a civil remedy.</p>
<p>In other words, that we will just be removing protections.</p>
<p>It was entirely clear that people who would be bearing passports and if they violated the conditions or restrictions, there would be a criminal statute that would apply.</p>
<p>Prior to 1961, it is true the passport did not explicitly refer to this criminal statute but it did refer to 18 USC 1544.</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: Mr. Learned, what do you say to the inquiry that was made by Congress of the Department of State concerning the effect of that pass of that press release that we’ve been discussing when it said in reply that “if to bear in this country X, he cannot be assured of the protection of the United States”.</p>
<p>It means that the United States does not approve for the bearers going to country X.</p>
<p>The restriction on the passport does not necessarily mean that if a bearer travels to country X, he will be violating the criminal law.</p>
<p>What do you say as to that?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: We think that’s true, Mr. Chief Justice and that precisely the problem under the existing statute.</p>
<p>A man who is, for example, travels from the United States to Paris and does not then intend to go to an area to which travel is restricted, is not, if he then decides to go there, violating the criminal law when he goes to the area to which travel is restricted.</p>
<p>The problem with the existing two statutes Mr. Chief Justice is that there were various loopholes that a man is not necessarily violating, and either of them, if he travels to an area to which traveler is restricted.</p>
<p>He violates this statute, the one involved in this case, only if he has the intent as of the time he departs from the United States.</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: But the answer of this answer of this State Department doesn’t make that distinction you do.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, it does say, Mister Chief Justice that it’s not – he doesn’t necessarily violate any criminal statute.</p>
<p>And, I might just point out that --</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: Well, (Inaudible) grab them when I got those that -- when he enters that country, he cannot be assured of the protection of the United States and that the United States would rather he didn’t go there.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: But that --</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: It does not mean that he would be violating the criminal law and that is my fair reading of that law of what they said.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: I think you would cheer me up to concede that the statement is murky and it’s ambiguous.</p>
<p>As a matter of fact, Mr. Chief Justice, the committee itself felt this much as a letter which appears in the very same hearings dated, I think a month thereafter from the committee to the Department of State, specifically refers to that question and to the Department of State’s answer.</p>
<p>And if I may read it, that letter which appears on page 78 of the very same hearing says, “On page 32 of the transcript you were asked with reference to the press release of 1952 whether at that time, the phrase “NOT VALID FOR TRAVEL TO COUNTRY X” stamped on a passport which is interpreted as prohibition for travel to that place and whether the Department has authored its interpretation of that phrase between 1952 and the present time.</p>
<p>The material submitted on this question was not responsive to the question.</p>
<p>That’s what the committee believed.</p>
<p>And, the Department of State came back with the answer which, I must candidly was equally ambiguous.</p>
<p>It didn’t say that it was a criminal probation.</p>
<p>It didn’t say that it felt it was not but it was –</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: Was the answer evasive?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, I don’t know whether it’s fair characterizes that whether it was not --</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: From the stand point of a person accused of a crime under the statue and you must himself interpret that, would you say that it was Obsessive if the State Department was asked a question and answered in this manner?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: I think that answer would not have put him unnoticed but I think the passport itself did, Mr. Chief Justice and I think that’s the important thing.</p>
<p>He had the passport – the passport was issued to him – and that passport by its on terms, which stated that 18 USC ’44 would apply did put him unnoticed.</p>
<p>I think travelers don’t ordinarily read Senate hearings but they do read that terms of their own passports.</p>
<p>Now, we think, in terms of notice --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Yesterday, you told that she didn’t have one.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Pardon?</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Yesterday, you told that she didn’t’ have one.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, oh, she had one back in 1958 and honored it withstand below.</p>
<p>That passport did not say that it was not valid for travel in Cuba because Cuba was not among the countries listed by it did definitely have the legend that this passport is not valid for and then we had an enumeration of countries and then it stated in the inside back cover that that violations of conditions or restrictions would be criminally punishable, use rather with violations of conditions or restrictions on the passport would be criminally liable.</p>
<p>I think --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: You said this --</p>
<p>Tell me again just what that legend was.</p>
<p>It was in the passport that this petitioner had.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: A person to whom a passport has been issued, who uses or attempts to use it in violation of the conditions or restrictions contained therein may have the protection of the United Stated withdrawn from him while he continues to reside abroad and may be liable for prosecution under the provisions of Title 18 United States Code Section 1544.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: But her passport didn’t state any condition for which she violated so far as this record shows.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Her passport did not but we think, when the Secretary announces that “all passports are hereby declared invalid for travel at Cuba”, that has to be read into every -- he makes a public announcement of it that we think that’s in effect amending people, amending the passports of people who hold existing documents.</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: Did everybody are supposed to know from the announcement of the Secretary of State that his passport is not good anymore?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, I think that question would be presented, Mr. Chief Justice, were it not for the fact that it was here stipulated that the petitioner definitely didn’t know about it.</p>
<p>I think we would certainly and I don’t think --</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: We are interpreting a statute here and I suppose what we do will affect a lot of other people and I wonder if you think of that ago that far.</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: No, we don’t think it in order to fly the people who did not actually know that there was a restriction on travel to that area who would accidentally or without knowing that there’s a limitation written into their passport with travel to restricted area.</p>
<p>I don’t think any such prosecution has ever been broad or would be broad.</p>
<p>I think clearly this statute would apply to people who know.</p>
<p>And this statute, because of its intense requirement, I think would be so limited.</p>
<p>It would apply only to people who know at the time that they are departing the United States that their passport is invalid for the travel on which they are going to engage.</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: I wonder if the fact that the Bar of the Association of the City of New York came to that conclusion that the statute did not form the interpretation as you put on it would not have some, if some indication that it was at least doubtful so far as an individual is concerned.</p>
<p>They made a very thorough study of this situation, I understand, by committee whose lawyers are about 32,000 - lawyers, to my recollection is, from City of New York.</p>
<p>If they interpreted it that way, it would not be some indication that an average citizen would find it difficult to understand and therefore, it would be vague as to him?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, I think it’s some indication.</p>
<p>I think they relied though quite heavily on material which is not available to the ordinary citizen, which is they relied quite heavily on the answer to the question that you just read, Mr. Chief Justice.</p>
<p>In other words, they were saying the Department of State has admitted that these are not criminally punishable.</p>
<p>And, I think that somebody, really an ordinary citizen who just has his passport and just reads his passport, I think it’s plainly put unnoticed because he reads it he looks at it said that it’s not just valid to the trip that he is making.</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: As I read your Brief, I thought you yourself had some doubt as to whether did --</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, we do say the status is not as fine --I think I conceded in answer to Mr. Justice Fortas, this question of the statute is certainly not as plain as it could or ideally should be.</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: How do you reach our cases and uphold that the criminal statute must be applied?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, we think that where as in this case, the legislative intention is to grant abroad powers to the Secretary of State in determining what is a valid passport and where the statute on its face in effect tells somebody that “you may not leave unless you have a valid passport”.</p>
<p>We think ordinary citizens just presented with that command that they may not leave without a valid passport and with the passport saying that it’s not valid for travel in light of the legislative intention behind these statutes are adequately put unnoticed.</p>
<p>I think that there have been a substantial series of cases, decisions by this Court which have said that although it’s generally true that penal statute should be strictly construed, that doesn’t mean that they are construed inconsistently with what their purpose would be.</p>
<p>Now, here we think, Congress was giving or was intending to impose restrictions in more time and in times of national emergency and delegating to the secretary the power to, within traditional limits, set those restrictions.</p>
<p>Now we think it would be –</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: What case do you think is most nearly inclined to this case in that regard?</p>
<!-- Learned_Hand--><p><b>Justice Mr. Justice Learned Hand</b>: Well, this Court’s decision last year in the Standard Oil case, for example, I think referred to the fact that all those penal statutes should have been strictly construed.</p>
<p>That’s not done in order to -- when the legislative intention is defeated.</p>
<p>I think even this Court decision, recent decision in a case such as United States vs. Price, where at that time the act was committed in the Price case after all there was substantial doubt among legal scholars as to whether the act committed were covered by the Civil Rights Act which was there applicable.</p>
<p>And yet, this Court construed that statute despite the doubt that existed at the time the act was committed in light of what Congress’ purpose was at the reconstruction period when the status was enacted.</p>
<p>Now, we think here, in light of the specific evils that Congress was directing its intent, attention to which is war time travel, a travel in times of national emergency, this statute should be read to put travelers unnoticed that their departures with intention to violate area restrictions, when those restrictions are written plainly into the passport, violate Congress’ command.</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: Well done.</p>
<p>Number 176, United States versus Laub.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Mr. Chief Justice, in light of the Government’s departures on the record, I feel impelled to make a complete answer to Mr. Justice Harlan’s question yesterday about the opacity of the stipulation.</p>
<p>I would like to make this statement.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Would you please speak a little louder?</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: Surely.</p>
<p>At the time that the stipulation was negotiated --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Would you state the question that you are answering?</p>
<!-- Cheif_Justice_Warren--><p><b>Mr. Cheif Justice Warren</b>: Surely.</p>
<p>Mr. Justice Harlan asked me yesterday why the stipulation was opaque with reference to what the petitioner possess at the time she departed the United States.</p>
<p>I told him that I couldn’t go beyond the record at that point, convince him the Government has gone beyond the record.</p>
<p>I would like to make this statement.</p>
<p>At the time that stipulation was negotiated, Mr. Justice Harlan and members of the Court, the United States Attorney and I agreed that the standard of criminality to be applied in this case was whether or not the petitioner held a valid passport specifically indorsed for travel to Cuba.</p>
<p>Having agreed upon that standard, we incorporated the language which you referred to as opaque and which we thought at the time was quite lucid.</p>
<p>It was on that theory that the Court based that the case was tried.</p>
<p>It was on that theory that the case was affirmed on appeal.</p>
<p>And, I submit that it’s a theory upon which this case was preceded from the very beginning.</p>
<p>If I may add that simply one more thing as reference to that legend in the passport concerning Section 1544, that Section has never been invoked in the case of alleged violations of area restrictions and it was not referred to by the Department in its considered reply to Senator Full Bright in 1957, that one which you referred earlier Mr. Chief Justice, that Section so far as I know has never been considered as having any application to Geographic restriction.</p>
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Thu, 23 Aug 2012 18:16:52 +000081404 at http://www.oyez.orgTravis v. United States - Oral Argument, Part 1http://www.oyez.org/cases/1960-1969/1966/1966_67/argument-1
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Wed, 06 Jul 2011 19:35:19 +000068439 at http://www.oyez.orgTravis v. United States - Oral Argument, Part 2http://www.oyez.org/cases/1960-1969/1966/1966_67/argument-2
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Wed, 06 Jul 2011 19:35:53 +000068454 at http://www.oyez.orgUnited States v. Robel - Oral Reargument, Part incomplete/cases/1960-1969/1966/1966_8/reargument-e
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Case:&nbsp;</div>
<a href="/cases/1960-1969/1966/1966_8">United States v. Robel</a> </div>
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Fri, 18 Nov 2011 02:36:43 +000080479 at http://www.oyez.orgUnited States v. Robel - Oral Argumenthttp://www.oyez.org/cases/1960-1969/1966/1966_8/argument
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Case:&nbsp;</div>
<a href="/cases/1960-1969/1966/1966_8">United States v. Robel</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Kevin T. Maroney</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: United States, appellant, versus Eugene Frank Robel.</p>
<p>Mr. Maroney.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Mr. Chief Justice, may it please the Court.</p>
<p>This is a criminal case which arose in the United States District Court, the Western District of Washington.</p>
<p>The indictment in the case charged the appellee with unlawfully from November 1962 to the date of the indictment, engaging in employment in a defense facility designated as such by the Secretary of Defense, while at the same time, being a member of the Communist Party, a Communist Action Organization.</p>
<p>The defendant having knowledge of the designation of the defense facility and also having knowledge of the Communist Parties having them finally found to be a Communist Action Organization within the meaning of the statute the Subversive Activities Control Act of 1950.</p>
<p>I'm going to the statute in more detail in a moment.</p>
<p>On appellees motion to dismiss in the District Court, the trial judge relying on this Court's opinions in the Scales case, Noto case, Brown and Aptheker held that in order for the statute here to be constitutional which post grabs of course, membership in the party while concurrently engaging in employment in a defense facility that the statute would have to be interpreted in such a way as to require active membership, knowledge of the unlawful purposes of the organization, and specific intent to bring about such unlawful purposes.</p>
<p>Based on that construction, the Court dismissed the indictment, and the government filed a Notice of Appeal in the Court of Appeals with Ninth Circuit.</p>
<p>Subsequently on the basis of the direct appeal statute and following our unopposed motion in the Ninth Circuit, that Court certified the case to this Court.</p>
<p>The pertinent parts of the statute, the Subversive Activities Control Act which are involved in the appeal are set forth in our brief beginning at page 3.</p>
<p>First of all the term Communist Action Organization is defined.</p>
<p>Of course, the Court is fully familiar with the definition which was involved in the Communist Party Case.</p>
<p>The term “facility” as used in the statute, means any plant, factory, or other manufacturing, producing, or service establishment, airport facility, vessel pier, waterfront facility, mine, railroad, public utility, laboratory, station, or other establishments or facility, or any part, division or department of any of the foregoing.</p>
<p>The term “defense facility”, as defined in the statute, means a facility designated by the Secretary of Defense, pursuant to Section 5 (D).</p>
<p>Section 5 (D) authorizes the Secretary of Defense to designate facilities with respect to the operation of which he finds and determines that the Security of the United States requires the application of the provision of subsection (a).</p>
<p>Subsection (a) Section 5 (a) which was the basis for the indictment in this case, provides that when a Communist Organization is registered or there is an effect to final order of the board requiring registration.</p>
<p>It shall be unlawful in the particular part we're here concerned with.</p>
<p>For any member of such organization, with knowledge or a notice that such organization is so registered or that there is an effect to final order of the Board.</p>
<p>It's unlawful for such a member, subsection (b), if such organization is a Communist Action Organization as it is here, to engage in any employment in any defense facility.</p>
<p>Now, I might also point out before going further that the Section 5 (D), as it was originally enacted in 1950, required that the Secretary of Defense promulgate a list of defense facilities which had been designated by him for purposes of the statute.</p>
<p>Statute of course, was passed in 1960.</p>
<p>This section did not become operative, meaningfully operative until 1961 when the final -- when the order against the Communist Party to register as a Communist Action Organization became final.</p>
<p>After that order did become final in October 1961, the Defense Department based on its determination that the publication of a master list of defense facilities would be very highly undesirable since such a master list of our strategic and vital facilities could be used as a guidebook for sabotage or espionage operations.</p>
<p>Because of that determination, the Executive Branch recommended to Congress and Congress adopted an amendment which provided the procedure which is contained in present Section 5 (D).</p>
<p>That is instead of a publication of a list in the federal register, the Secretary advises the defense facility and there is the requirement that such determination be posted conspicuously in the defense facility.</p>
<p>This posting requirement is contemplated to be done in such a way as to ensure that actual notice of the designation and of the status of the Communist Party will be brought home to each employee.</p>
<p>We have outlined in our brief the background to the Internal Security Act and the concern which was shown by Congress for the adequacy of the existing loyalty security procedures.</p>
<p>We submit that the manner in which the District Court contrude this statute defeats the intent of Congress in enacting the statute.</p>
<p>As construed by the District Court and in the words of Judge Wyzanski in the vendor case, regards the arsenal, only against those and who satchels, bombs have already been found.</p>
<p>We submit that it was the intent of Congress to bar those whose loyalty is in doubt and not those of proven disloyalty.</p>
<p>The question of the adequacy of existing loyalty security program was really presented to Congress when it was considering various bills which led to the enactment of the Internal Security Act in 1950.</p>
<p>One bill which was submitted and being considered by Congress would have imposed penalties on any federal employee or person employed in the performance of any national defense project, who became or remained a member of the Communist Party while so employed, or a member of any other organization designated by the attorney general.</p>
<p>The Department of Justice opposed that legislation on the basis that it would constitute a bill of attainder that the bill contained no legislative findings, and in any event that the existing procedures concerning the control of the industrial personal security program were adequate.</p>
<p>Congress met the first two objections by defining the class more narrowly than by reference to the Communist Party or to any other organization designated by the attorney general, defining the class as a Communist Action Organization within the meaning of the statute.</p>
<p>And in addition, the bill which was adopted contained extensive legislative findings to support the legislation.</p>
<p>So that despite the objections voiced by the Department of Justice concerning the adequacy of existing loyalty security procedures in the industrial security field Congress --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Did the defendant of the Department of Justice, the Act eliminate those constitutional problems that it objective to--?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well it did of course eliminate the bill of attainder, Your Honor.</p>
<p>And also it did meet the department's objection on the lack of legislative findings.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Would you mind telling us how it eliminated the bill of attainder issue, please?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, it didn't apply.</p>
<p>Congress did not use or did not make it applicable to members of the Communist Party by name or any other organization thus to any body attorney general.</p>
<p>It made it applicable to members of a Communist Action Organization within a meaning of the statute.</p>
<p>Of course, Congress set forth in the statute the general definition of Communist Action Organization as being any organization within the United States that is dominated and controlled by the Soviet Union, the leader of the International Communist movement, and which is operated primarily to advance the objectives of the International Communist movement.</p>
<p>So that its objective standard was to establish as to what is a Communist Action Organization.</p>
<p>Any member who is a member of – any person who is a member of such organization is under the section disqualified from engaging in defense facility employment.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Suppose the person otherwise is subject to the statute belongs to an organization that's been proved from picking, picking and orienting in the Communist Group, would the statute cover?</p>
<p>I wondered about that as I look at the language in that.</p>
<p>And I noticed if you just prospected your statement of the Soviet Union.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Yes, sir.</p>
<p>I think that the Subversive Activity's control board in making its findings in the Communist Party case, made the determination that the foreign government controlling the International Communist movement which is referred to in the Internal Security Act is in fact the Soviet Union.</p>
<p>This Court in reviewing those findings agreed that it was the Soviet Union, that the Soviet Union was the foreign country referred to in the statute.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: So that --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: It would not cover, I think, an organization dominated and controlled by the taking --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I've seen a little point today when the --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Yes, of course, the time the statute was passed; it was only one clearly defined leader of the International Communist movement.</p>
<p>In fact, there has been a splintering, I think, doesn't affect this particular statute, the question of whether or not, there should also be coverage in another area.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And whether or not, that has legal or constitutional implications.</p>
<p>I don't know.</p>
<p>I think your adversary addresses an argument to that effect.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I think it would not have any insofar as this case is concerned, the findings with respect to The International Communist movement and the leadership of the Soviet Union, I think, are still valid.</p>
<p>The nature of a Communist Action Organization in this case, the Communist Party and its ideological attachment and control, and domination by that foreign dominated conspiracy is still as valid as it ever was.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Suppose a question might be raised as to suppose John Jones belongs to Moscow Dominated Communist Organization, he's subject to criminal punishment under this Act.</p>
<p>And Joe Doug belongs to a Chinese Communist; a peaking a Communist dominated organization.</p>
<p>And I guess he's not subject to criminal penalties under the Act of law to at least argue of all that danger exist same danger except to the standings, that's what we respect about that.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Yes, Your Honor.</p>
<p>But I think that because Congress has legislated to cure -- I think it's the old proposition that because like Congress they legislated to cure one evil and possibly has not covered another evil.</p>
<p>I think that does not militate against the validity of the present provision.</p>
<p>Despite the disagreement between the executive and the legislative branch, as to the adequacy of the then existing security programs as I indicated earlier, Congress was of the contrary view and clearly intended by the statute to extend the coverage to employees of defense facilities.</p>
<p>Now, at that time and today of course, there is an industrial personnel security program which does cover employees of private contractors who are working on classified government information under government contract.</p>
<p>But that security program does not cover or did not cover 1950.</p>
<p>Employees of important defense facilities which were vital to our defense effort, who we're not engaged in working on government contracts.</p>
<p>And this provision was designed to extend the security program to cover that open space.</p>
<p>Certainly, there was no disagreement between the Executive Branch and the Legislative Branch on the substantial dangers from the possibility of espionage and sabotage wherein members of Communist organizations we're concerned.</p>
<p>President Truman, although he vetoed the entire Act and specifically referred to this section in his veto message had this to say and except within our brief of page 24.</p>
<p>He said the dangers of communism come not from normal political activity but from espionage and sabotage in the building up of an organization, dedicated to the destruction of our government by violent means.</p>
<p>The president in his veto message stated that this bill would prohibit the employment of communism defense plans.</p>
<p>The fact is that it would be years before this goal would have any effect of this nature, if it ever would.</p>
<p>Fortunately he said, this subjective is already being substantially achieved under the present procedures of the Department f Defense.</p>
<p>In subsequent years, the Defense Department strongly pointed out to Congress the dangers in these important and vital, and strategic facilities of persons who were members of the Communist movement.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, do I -- am I correct, I think I recall you note one of these briefs that this particular fellow had been working at a shipyard, the same shipyard for ten years before the criminal proceeding and then after he was indicted, he went back and he's been there since for a couple of years.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: That's right, Your Honor.</p>
<p>He's still employed.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Isn't there some procedure by which he can be removed from his position?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: No, sir.</p>
<p>The only -- the only procedure or the only recourse provided for by Congress was by way of criminal prosecution in the event the person maintains his defense facility --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: So you get to follow like this under the statute suppose he's a saboteur, he can be indicted then he goes back to work in the -- and then he gets out on bail, and goes back to work in the defense plant which is apparently what happened here and he continues until this goes through the courts.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Yes sir.</p>
<p>Of course this is --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: There's a lot of distinction and principle between this case and the Cafeteria case where the woman who worked there for years in the cafeteria, I think that was a federal facility.</p>
<p>But she worked there for years and then was removed because it was said that she had a security risk although it was never disposed to her what the reason was.</p>
<p>What is the difference in principle insofar as getting rid of them from the job?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, of course in the Cafeteria Workers case the -- that was, Your Honor indicates a federal facility of the naval base, this is a private facility.</p>
<p>However, deemed by the Secretary of Defense to be vital to our --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I suppose this were defied but was a federal establishment, we're not the same section?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, this -- I think other security programs, I don't think that there are any federal establishments that by designating under this particular section.</p>
<p>The purpose of this section was to permit the Secretary to designate private facilities.</p>
<p>There's already adequate control and adequate authority for controlling federal military bases and other sensitive federal bases.</p>
<p>And in a federal base, I think that under the Cafeteria Workers' decision, there could be an absolute bar of course.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: You don't think this would apply to any federal facility here.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: No sir, I don't think this statute does apply to a federal facility.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: I was wondering Mr. Maroney if there's any limitation at all on the Secretary in his determination of what is the defense plan.</p>
<p>Does he have any hearings?</p>
<p>Does he make any determination of that thing?</p>
<p>Or does he just list it as he chooses?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, at the statute vested in him, the discretion to make the determination and I think --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Absolute discretion?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I would have to say that if I can qualify absolute discretion by the saying that I assumed that a defendant in a case such as this could defend by showing a clear abusive discretion or showing mistake but not I think quarrelling with the reasonableness of the Secretary's determination.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Does he put -- does the statute for any limitations of any kind on the --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: No, sir.</p>
<p>The statute best the Secretary with discretion to make this determination --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: His language is pretty broad that the term “facility” means any plant, factory, or other manufacturing, producing or service establishment, airport, airport facility, vessel, pier, water-front facility, mine, railroad, public utility, laboratory, station, or other establishment or facility, or any part, division, or department of any of the foregoing.</p>
<p>I suppose that if we listed everything in that category, you'd have the major part of our economy, wouldn't you?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, he has to make the determination.</p>
<p>In addition to that though, Your Honor, that --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I beg your pardon?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I say that he has to make an additional determination and that particular facility is necessary to the security of the United States.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, I suppose that any of the 10,000 -- thousands of plants in this country that produce materials for the government and there, I supposed ten to thousands of them that where within the Act.</p>
<p>And I suppose all of our public utilities could come on this.</p>
<p>And it's same to me that that would take pretty large segment of our whole economy that the Secretary could with some unbridled discretion that determine.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I don't think it's unbridled discretion, Your Honor.</p>
<p>It has to be --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: What is the limitation if any?</p>
<p>I just -- that's what I'm trying to find out if you could tell me that.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, let me say this, that the Secretary has in point of fact setup five categories or facilities which have been placed on the list.</p>
<p>And I will enumerate those in a moment.</p>
<p>But I think that it's also highly relevant that those five categories were specified and were before Congress in 1962 at the time of the amendment of Section 5 (D), so that Congress at that time at least was fully appraised and approved of the particular right categories which had been adopted by the Secretary.</p>
<p>And those were, of course, considered by Congress both the House and the Senate, in fact, passing the 1962 Amendment.</p>
<p>The five categories are; facilities engaged in important classified military projects.</p>
<p>This is page 27 -- they are set forth in page 27 of our brief, facilities producing important weapon systems, sub-assemblies and their components, facilities producing essential common components, intermediate basic materials, and raw materials, important utility and service facilities, and research laboratories whose contributions are important to the national defense.</p>
<p>Now, the Department of Defense has advised us, and as we have set forth in the brief that less than 1% of all manufacturing production facilities in the United States have been designated under this program.</p>
<p>Less than 1% of the utility in service facilities has been designated under this program.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: What does that mean?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Sir?</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: What does that mean 1% on what basis?</p>
<p>Number of people employed?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: They based it on the 1% of the number of facilities.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Number of facilities.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Total number of facilities in the United States.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Number of census establishments.</p>
<p>Would be probably be a lot greater in terms of the percentage of people employed.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I understand that, Your Honor.</p>
<p>I ask this specific question of the Department of Defense official involved in this.</p>
<p>And at least, it was his view that there would not be a greater, tremendously greater disproportion as far as the number of jobs actually involved.</p>
<p>Because on this list there are small facilities and there are very large facilities, and of course, eliminated from the list, or not on the list at all are likewise many, many very large facilities.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Would you say then that under the legislative history, this in accordance with the legislative history, this Act is confined to these five categories or can the Secretary go beyond these?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I think at least with respect to these five categories, there's clear indication that these particular types of facilities are intended by Congress to be embraced by the statute now --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: What I'm trying to find out --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: -- I think that there --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- is if there is any limitation on the Secretary or whether he can declare anything at any place for their any goods manufactured, and anything of that kind, or any utility which carries these products, that is a defense operation?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: It would have to be limited by being found to be unnecessary to our security here from a defense standpoint.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: How can a man who is charged with a crime finds out?</p>
<p>And how can he establish in a criminal trial whether the Secretary of Defense acted within his discretion or beyond it?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I think he has a rather great burden to show that he was acting without his discretion if the Secretary has designated a particular facility.</p>
<p>I think he can show if he can that there was a clear abuse of discretion.</p>
<p>But unless he can do that then I think that the determination by the Secretary, if it's within, certainly if it's within these five categories, is to be presumed reasonable.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Without any proceeding of any kind just he's stated it's within.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Yes sir.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I don't see how that finds so-called barred category, isn't it?</p>
<p>It's anything but everything.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I think it's broad, Your Honor.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Anything to be used in military defense or any components of this.</p>
<p>That's everything.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I don't see how it can be used as discretion if we decided anything, any component of anything that's useful to the military or whatever that's worth.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I think the Secretary has to make a determination that these are facilities in which are --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Determination looks to me like it's boundless proportion.</p>
<p>I don't see any limitation that's all isn't it, except everything?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I certainly don't think it would embrace everything.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What could it exclude?</p>
<p>Those are pretty broad words.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, of course, in the sabotage statutes themselves, the reference to war materials, things which are conducive to being used in --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I said sabotage statute themselves are broad and I think that they are intended to protect --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That's the characteristic of such statutes.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: The particular installation involved in this case is the Todd Shipyards, Seattle Division.</p>
<p>It's a -- the purpose of the designation in the Todd Shipyards situation is its capacity to repair and to build ships including ships on navy contract.</p>
<p>As a matter of fact I understand in '62 and '63, the Todd Shipyards Company was working on a contract to build two guided missile destroyers.</p>
<p>Of course, that was a classified project and those two ships were in a special part of the yard where if the person did not have access for classified information, he could not get into the piers that were right adjacent to those ships being built around the ships, of course.</p>
<p>But the other part of the yard were of course, any employee would be able to go or have access to -- the importance of that, is of course, the ability of the facility to carry on as a repair yard for navy vessels and to build navy vessels.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Not in the insulation generally, no, sir.</p>
<p>But there is a -- I understand that it is a fenced facility.</p>
<p>There are -- the company maintains its own guards.</p>
<p>The company controls ingress and egress of its employees, and a lot of persons coming in, but no clearance from the government is necessary.</p>
<p>Now, of course, that wouldn't be true with respect to the more secured area at the time these missiles destroyers were being built.</p>
<p>That particular area of the yard, there would have of course, have to be an access clearance.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: The designations that are made whether the statute could (Inaudible).</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: That's right, sir.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Does the contract meant to be designated?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well I don't think there is a requirement of a government contract involved.</p>
<p>Although of course, many of these facilities do have government contracts.</p>
<p>One of them for example, I understand is a producer of jet engines.</p>
<p>However, there are some facilities for example certain facilities in Niagara Mohawk Power area.</p>
<p>Some of those facilities which are being vital to our defense posture are included in the list.</p>
<p>And of course, the rationale behind that is that if certain parts of those facilities could be not down of course, we still have an example just a year ago where, in fact, we all knew of New England was not that of power worth $24 or $36.</p>
<p>So the facility of that nature is designated because of its importance not only from standpoint of paralyzing a current community, but possibly having an adverse effect if it were knocked down on our defense communication systems and radar systems.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Figures, I think, it's approximately 3000.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Yes, sir.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: This was a designation that was made shortly after October 1961 after this amendment, the list was began to be prepared at about the time the decision in the Communist Party case was coming to a close.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: That's right, sir.</p>
<p>The total -- on the list today and I think that would be a norm since 1961 is approximately 3000.</p>
<p>I better confirm that figure and I would advice the Court if I'm off by --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: This list, were revised periodically in this amendment?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: The statute requires that it be revised periodically, yes, sir.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: So that 3000 would have been of the 3000 today designated and made it more or less from time to time?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I think there may have been some change.</p>
<p>And I think some facilities are added from time to time.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Some eliminated --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Some should be eliminatedfrom time to time.</p>
<p>But the facilities as I understand that which are on this list -- it's not a list anymore really which are designated, most of them I assume for the foreseeable future will remain pretty much standard.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Something like Mohawk Power, doesn't it?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Mohawk Power and Airplane Manufacturing, Airplane production, shipyards, important overseas communication facilities, and things of that kind.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Tell me, Mr.Maroney, where one of these facilities has a government contract.</p>
<p>If they're reserved any longer with the kind of provision we had in Greene and McElroy it would go the right (Voice Overlap)?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Industrial Personal Security Program?</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Yes, in other words, this gets back to something to Chief Justice to get supporters of that earlier.</p>
<p>I just wonder, aren't those incriminate these -- well, they actually have a contract with one of these facilities.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: It was classified information.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Don't they reserve some right to say that you must not allow particular employee to be in --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: That's right, sir.</p>
<p>If it's classified information, it's part of the contract as I understand it, that the contractor has to get clearance from the Department of Defense.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well, now they have told us that this yard about the time Ms. Chapp was employed, do I understand it?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Yes sir.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Had government contracts to build those guided missile destroyer?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I understand they did do '62 and '63 when they were building those two guided missiles.</p>
<p>Where they did that day, I'm not sure.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Was he working there at that time?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: He was working in the facility but he did not have access to the adjacent area to these two destroyers.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And the only control goes to those who may have access, is that it?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: He would have to -- in order to get to those two destroyers, he would have to get a security clearance from the Department of Defense.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Yes, from the government agency.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Right, sir.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Is there any -- do you have any idea how many members involved in those plants?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: No, I don't, Your Honor.</p>
<p>Well, as I say, it's 1%, approximately it could be two or two-and-a-half or three.</p>
<p>It's a 2% or 3% of the total workforce in this kind of manufacturing production plants and utilities, service facilities, laboratories, and so forth.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I read somewhere in these papers, I don't know where that these orders involved about three million men, is there any, I read that someplace else or not?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: You mean the designation here involved three million men?</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I really wouldn't be sure, Your Honor, if I could try to find from the defense --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: If you don't remember, it's all right.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Mr. Maroney, one other question.</p>
<p>Suppose this yard, in addition to the work that he gave at the designation of the defense system, also the general repair and construction works say in private yachts and --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: It does that as I understand under the private yachts but it does do general repair on private ships.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And if this respondent I gather were employed exclusively whatever work he does on those private yachts, nevertheless the statute would -- could send him to jail for five years, isn't that right?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: That's right, sir.</p>
<p>And --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Why?</p>
<p>Why is that?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: As I indicated, part of the reason for the designation of this facility is not so much -- or not certainly, completely that it was working on two-guided missile destroyers in a year or two.</p>
<p>It is the capability of this particular yard to handle in an emergency situation navy ships for repair.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Does that suggest that if there were a time when this yard did absolutely nothing except work on private ships.</p>
<p>Let's say they're all private yachts, they never did anything else and hadn't for years.</p>
<p>It might, nevertheless, be designated as a facility because maybe someday, it might be useful to have that as a repair ship.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I think that if it had special facilities for repair work, which would be -- in other words, if it was a small yard that couldn't take anything but a cannon cruiser then of course I don't think that would --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Let's take this yard, Mr. Maroney.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: This yard?</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And it had nothing -- never for years done anything except private (Voice Overlap).</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: As I understand, the basis of the designation with respect to this yard, that is true Your Honor, that it's because of the capability --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I see.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: -- of this yard, to do -- to handle repair work which would be essential in connection with our naval ships in an emergency --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Regardless of whichever use and so on, for that sole purpose.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I'm sure the fact that it -- I mean if it were used, I would doubt that they would have the facilities to do this.</p>
<p>But --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: But nevertheless, theoretically this could be so.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Theoretically, I think.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Designated this way and never used and so on.</p>
<p>And this man go to jail for five years --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Five, I think theoretically that's true, Your Honor, but I think it is a practical matter if a shipyard such as this has facilities that are important and are vital or would be vital in an emergency situation, those facilities would be used, time to time.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What category is it?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Sir?</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: These were the five categories that come into?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I guess this particular one would -- or at least going far at this time would come within the one, first category.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That's bad news here probably?</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: This is the situation I put Mr. Maroney, where they never had any -- and hadn't for years had any of it, but it's designated only because of its potential capacity, which on of the five would come in to that case?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Four?</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: You could put it under four, that's utility --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I don't think it would come under four, no (Voice Overlap).</p>
<p>Four, is subdivided into four subcategories, communications, electric power, transportation and water supply.</p>
<p>Now --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I don't find anything in the past that that has been interpreted administratively.</p>
<p>That would cover Justice Brennan's hypothesis.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: One, to your projects; two, it is important with defense systems; three, production, that's not repair; four utilities; five is research.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I think that possibly there would be four that would be a justification for that kind of determination, certainly one --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But your Footnote 11 wouldn't say that?</p>
<p>It says communication, electric power, transportation.</p>
<p>What is left in saying repair?</p>
<p>And there's only 1% there you say, that the military's reported to you?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: That's right, there's only 1% of both utility and service and manufacturing and production projects.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Suppose a man -- suppose this defendant, this petitioner here wanted to raise a question as to whether he came under any of these five specifications how would he do it in the criminal case?</p>
<p>What was the burden -- what burden would be applied to establish that he didn't come within any of these?</p>
<p>I asked that question because you yourself have such difficulty in determining what section it comes under.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I -- I think he would -- these five categories, I think there are clearly ones that are clearly approved by Congress.</p>
<p>And now I think he could defend on as I indicated earlier, if he could show or make it show to the Court that the placing of a particular facility was a clear views of discretion and wouldn't come within any of the possible standards for the Secretary of Defense in making this designation.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, what would he -- what would he attack here if he have to attack here and establish --</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Of course here in this -- in this particular instance, since the statute concerns 1962 and 1963, of course, number one, it's a clear support for the designation of Todd Shipyards as of the time of the indictment period in this case.</p>
<p>You know, that facility was engaged that time in a classified military project working on these two destroyers.</p>
<p>Now, the District Court relied on four cases to make the determination that these elements of activity and knowledge of unlawful purposes and specific intents should be read into the statute in order to hold it to be constitutional.</p>
<p>The Scales case and Noto case I think are clearly inapposite since they -- those were prosecutions which, under a statute, which made membership in an organization advocating overthrow, a criminal offense.</p>
<p>It was a direct prohibition against membership in such organization.</p>
<p>And since it was a direct partial abridgement of First Amendment activities, this Court felt it reasonable to include and to read in the elements of activity and knowledge of unlawful purposes and specific intent.</p>
<p>Here, of course, it is not Congress' desire and it was not ongress' purpose in passing the statute to punish membership in a Communist-action organization.</p>
<p>The purpose of this statute is strictly prophylactic purpose, and it punishes only the combination of the element of membership in a Communist-action organization while at the same time being an employee of a defense facility.</p>
<p>And in that respect, we think that it's quite similar to the Banking Act provision which this Court upheld in Board of Governors v. Agnew which was, of course, basically a conflict of interest statute.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, could Congress constitutionally provide that Secretary of Defense may notify, in this case, a shipyard and the shipyards shall terminate the fellow services and if they don't then there would be some penalty on the shipyard?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I think it might be able constitutionally to do that Your Honor.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: It bothers me -- I'm not suggesting it bothers me permanently, and at the moment what bothers me is sort of anomaly in this statute that it doesn't seem really to go the evil to which its addressed.</p>
<p>Let's say you think that the government's subject here would be to get the fellow out of the shipyard, excepting all of the premises and have his employment terminated and they have a scheme with respect to classified facilities that does that.</p>
<p>But here, he get outside of the category of classified facilities and get into what -- my hypothesis is less dangerous or less sensitive type of employment, and the commerce has employed a criminal sanction instead of a similar administrative sanction.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, of course, it's somewhat similar provision with respect to government employment is provided for in hijacks, which makes it a criminal offense for a person.</p>
<p>And as a matter of fact, another part of the this section also makes it a criminal offense for a person to be an employee of the government while at the same time being a member of an organization that advocates the overthrow of government.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: But isn't there a procedure which respect to government employees so that the person has an opportunity to get out of the government once he -- once -- doesn't he have an opportunity to know the government's concern about as being an employee and isn't he given an opportunity to get out?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I think so.</p>
<p>But I think he has the same opportunity here.</p>
<p>This statute requires that he'd be put on notice that this facility has been designated as such by the Secretary of Defense.</p>
<p>And that notice also advises him that the Communist Party has been designated as a Communist-action organization within the meaning of the statute.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I know but suppose -- suppose he thinks he's not a member, membership in the Communist Party is not, as I understand it, is not always as easy of ascertainment as it is to find out what you have for breakfast.</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I think that under the standards of membership which this Court laid down in Killian.</p>
<p>Of course, the government would have to prove -- will have the burden of proving that he considered himself to be a member of the Communist Party as of the time that he was also an employee of the defense facility.</p>
<p>In other words, I don't think there's any question what the government, in a trial of this kind, has to prove that the man himself knew that he was member of the Communist Party and considered himself to be a member of the Communist Party.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Was that legislated in the indictment here?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Oh yes, the indictment charges that --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Not only that he was a member but that he knew that he was a member and considered himself as such?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, charges that he unlawfully maintained employment while at the same time being a member of the Communist Party.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Thats a little different, isn't it?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I don't think it's any different as far what the government has to show in the file.</p>
<p>I think the government certainly is required to prove that the man knew that he was violating the statute.</p>
<p>He had to know that this was a defense facility, he had to be put on notice in that effect, he get to be put on notice that the Communist Party had been designated as -- or had been found to be finally a Communist-action organization and that he himself was a member of the Communist Party.</p>
<p>I think the government has the affirmative burden of showing every one of those elements.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well then there isn't may not be a great deal in difference between the government's point of view and the point of view of the District Court here.</p>
<p>I don't know whether Communist Party still issues embossed membership certificates or whatever it is.</p>
<p>But, as to that I suppose a knowledge is proved -- then we would have to prove knowledge of Communist Party membership by showing some activities on the private fellow, isn't that right?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: I think we would have to certainly show probably attendance of meetings or maybe payment of dues, submitting to some instructions from a party, carrying out instructions from the party.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And how different is that from what District Court here said you have to do?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Well, I don't think for example that we are obligated as a District Court, feels that we would have to -- in order to have the statute be constitutional.</p>
<p>We don't feel that we're obligated to show by evidence of -- thought this man's own activities or a member's own activities that he had knowledge through those activities of the unlawful purposes of the Communist Party.</p>
<p>He does have to, of course, be fully aware that the party has been found to be, after a board proceeding, a Communist-action organization and therefore as being an organization whose objectives may not be wholly lawful.</p>
<p>We have to show that.</p>
<p>We don't have to show thru his -- I mean, in other words we wouldn't have to have to show that they attended schools where they talked, where they discussed Marxism, Leninism, and so forth.</p>
<p>We don't feel that we have to show that he had this specific intent to bring about the overthrow.</p>
<p>Now, in a particular case, in the course proving membership, it may be that some of these elements would also be justifiable conclusions from the activities which would prove membership.</p>
<p>But our point is that that affirmative burden of proof as to those elements, it was not intended by Congress and it we don't think are appropriately elements of the offense.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: How many prosecutions have they been?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: This is the only case.</p>
<p>This is --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: When was this started, Mr. Maroney?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: In May of 1963 Your Honor, the motion to dismiss was subsequently filed and the District Court held its decision pending this Court's determination of the Archie Brown case and the Aptheker case.</p>
<p>Now, I'd just like to take one minute and possibly save a couple of minutes for rebuttal.</p>
<p>I think, Scales is another as I indicated, I don't believe apply here at all, Aptheker which of course invalidated the Section 6 provisions of the same Act relating prohibition of a member of a Communist-action organization applying for using a passport.</p>
<p>I think an important difference or several important differences between this situation and the Aptheker situation is, first of all, the gravity of the danger that's involved here.</p>
<p>Secondly, in Aptheker, the Court is construing the statute on its face held that only constructive notice through publication the Federal Register was necessary in that case.</p>
<p>And that it was not necessary that the individual who was a member of the party at the time he applied for passport would actually have knowledge that the organization had been designated as a Communist-action organization.</p>
<p>In this case, I think it's different.</p>
<p>He does have to be put on notice that the organization is under a final order to register.</p>
<p>The sweep of the statute here is not nearly so broad as it was in Aptheker.</p>
<p>Aptheker barred all travel, by all members of the Communist Party outside the western hemisphere.</p>
<p>This statute of course affects a small number of the members of the Communist Party and it affects in only insofar as to bar him from working in 1% of our entire manufacturing plants.</p>
<p>The Archie Brown of course which the District Court also relied on, I think, is strictly a bill of attainder decision and I think this is clearly the distinction.</p>
<p>I like to save a few minutes, Your Honor.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Abt.</p>
<p>Argument of John J. Abt</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Thank you Mr. Chief Justice, may it please the Court.</p>
<p>I'd like to make it perfectly clear that the outset, something that I think Mr. Maroney said, but -- is at the heart of this case and that is that this statute Section 5 (a) (1) (D) makes it a crime for a person to work in a facility that the Secretary of Defense has designated as a defense facility solely because of the bare fact that he holds membership in a Communist-action organization that has been designated as such by the Secretary of Defense.</p>
<p>Now, Judge Lindberg, the District Judge thought and I think quite properly that the statute of this time applies in the face of this Court's decisions in the Scales case and more pertinently in the Aptheker case.</p>
<p>And in order to get around what he considered to be that constitutional infirmity in reluctant to declare a federal statute unconstitutional, he reinterpreted the statute by reading into it elements that the statute doesn't have.</p>
<p>That is to say the element of knowledge on the part of the accused that the organization of which he is a member has an unlawful purpose, an intent to effectuate that purpose and activity looking to that entity.</p>
<p>And it's so construed, he said, the statute might be constitutional and he therefore dismissed the indictment because it doesn't contain these allegations.</p>
<p>Now, we agree with the government that the District Court was wrong in its interpretation of the statute.</p>
<p>The statute doesn't bear the construction, but Judge Lindberg gave it.</p>
<p>And on that question, it's your decision in Aptheker's controlling, that the Aptheker said that's exactly the same thing about Section 6 of the Act.</p>
<p>Section 6 makes the bare fact of membership in an organization that has been order to register as a Communist-action organization, a disqualification for obtaining a passport.</p>
<p>The Court said you can't cure this statute by reading the elements of knowledge and intent and activity into it.</p>
<p>And that decision with respect to Section 6, I submit, is applicable with equal force to the section we have here today.</p>
<p>Now, in the absence of these elements, knowledge -- guilty knowledge activity and intent, I submit that the section is unconstitutional in the first place because it violates the due process principle that the government may not arbitrarily and unreasonably interfere with the right of an individual to hold specified private employment.</p>
<p>Mr. Maroney defends the statute as a reasonable measure in the interest of protecting the national security.</p>
<p>But if the government had deliberately setout to find a case which would most strikingly illustrate the fallacy of that claim, it couldn't have done better than to pick this one.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: We'll recess now.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Yes sir, it's the union out there.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: So which one is it, do you know?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: The Machinist Union.</p>
<p>To send Robel to prison, under this indictment, would not only deprive him of his personal liberty, and Todd, a good machinist, that it would chip away at the freedom of every American and for no conceivable or discernable purpose.</p>
<p>Because Robel and others like him who as the government's brief concedes and I quote from it, “Would never consider committing either espionage or sabotage, post no conceivable threat to our national security”, or would there conviction and sentenced under this statute served any legitimate governmental interest.</p>
<p>The invalidity of this indiscriminate restraint of the right to work is established by the decision in Aptheker which invalidated the similar indiscriminate restriction of Section 6 of the Act on the right to travel.</p>
<p>And I must say that I consider it a real feat on Mr. Maroney's part to have talked about this case for 55 minutes before he mentioned the Aptheker case.</p>
<p>Because the two are, from a legal point of view on this question is like this two-piece in a pod, Section 5 like Section 6 applies to members who do not know that the Communist Party has any unlawful purpose and who believed that the finding of the Subversive Activities Control Board that the Communist Party is a Soviet agent, he spoke on truthful and unwarranted.</p>
<p>The section is therefore invalid because in Aptheker's words, and I quote from it, it sweeps within its prohibition both knowing and unknowing members.</p>
<p>Furthermore, Section 5 like Section 6, again to quote Aptheker, also renders a relevant, the member's degree of activity in the organization and his commitment to its purpose.</p>
<p>Furthermore, Section 5 as Aptheker said of Section 6, excludes consideration of additional relevant factors.</p>
<p>It applies to every job in an establishment that's been designated as a defense facility even to jobs which from a security point of view are completely insensitive.</p>
<p>And it applies to all members of the organization who hold these jobs, even though in doing so, they are motivated by nothing more dangerous than the common desire of all us to earn a living.</p>
<p>Section 6 like -- or Section 5 like Section 6, therefore, is an extreme example of the imputation of guilt from associations.</p>
<p>It established an irrebuttable presumption that every member of the Communist Party merely because of the fact of his membership is likely to endanger the national defense every time he has given access to a defense facility, to the premises of the defense facility.</p>
<p>This presumption is invalid because as Aptheker stated and again I quote, “it is supported only by a tenuous relationship between the bare fact or organizational membership and the activity Congress sought to prescribe.”</p>
<p>Furthermore, as in the case of Section 6, Congress could have accomplished it's objectives by less drastic because more discriminating means.</p>
<p>These are exemplified, these means, in the first place by the industrial security program that Mr. Maroney mentioned a program administered by the Department of Defense and presently applicable to the employees of the defense contractors.</p>
<p>Congress could of course, very readily have extended it, if it wanted too, to all employees of defense facilities.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Is it your belief that under this defense program, that they could get rid of Mr.Robel now and not resort to the criminal --?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No, they could not because (Voice Overlap) Mr. Chief Justice, no they could not because I'm just going to say in a moment that program is less drastic and more discriminating that this statute.</p>
<p>But I'll come to that in just one moment.</p>
<p>This industrial security program and its predecessors date back to World War II and there is nothing to indicate and Mr. Maroney said nothing to indicate that the program hasn't proved entirely adequate as an internal security measure.</p>
<p>The program is less drastic than Section 5 (a) (1) (D) in two respects.</p>
<p>First, it makes membership in a Communist organization, only one factor to be considered in connection with all of the surrounding circumstances in determining whether an employee is a security risk.</p>
<p>And second, persons are denied security -- who are denied security clearance, aren't barred from all employment in the plant, they are only barred, from access to classified information and to jobs of course, which require such access.</p>
<p>This approach reflects the common sense view that there is no danger in applying a security risk in a job that's completely insensitive.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, that is -- that isn't necessarily so, is it Mr. Abt, that id to say it's conceivable that in a place like Todd Shipyards somebody who is employed in a non-sensitive part of it could disrupt the activities throughout the shipyard?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: It's conceivable but anybody can -- I suppose, could disrupt the activities of any employee, of the immediate job that he's on by some kind of conduct.</p>
<p>But as Mr. Maroney told us, he's fired, removed from these -- from a sensitive work that's going out in the plant.</p>
<p>He doesn't have access to the parts of the shipyard where they're building destroyers or engaging in other sensitive activity.</p>
<p>And it's hard to conceived what he could do that would be disruptive.</p>
<p>And I call your attention Mr. Justice Fortas to Cole versus Young in which the Court, because of this consideration, interpreted the security statute -- or not the security statute, in that case with the President's Executive Order, as applying only to security sensitive jobs.</p>
<p>The 1957 Report of the Commission on Government Security, similarly to the industrial security program, opposed the exclusion of security risks from non-sensitive employment, labeling such a measure, and I quote, “objectionable and unnecessary.”</p>
<p>The same report also recommended that in determining the significance for security purposes of membership in a Communist organization, consideration should be given to the factors of actual knowledge of the purpose of the organization, the member's own intent in joining it and the degree of his participation in its activities, factors which --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Mr. Abt, may I ask you, do you think that 5 (a) (2) (B), that's the one authorizing the designation of facilities invulnerable to charge of excessive congressional delegation?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well, we don't -- we don't argue in terms of excessive congressional delegation Mr. Justice Brennan because this Court has approved some pretty broad delegations.</p>
<p>We do argue it in terms of the denial of procedural due process.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I appreciate that.</p>
<p>I know that you believe that it doesn't argue.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Right.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: But I wonder, do you think it is?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: I would have thought so before I've read some of your decisions in which you've authorized some awfully broad delegation.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And what about Schechter's --</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well, Schechter is kind old fashioned these days, I think Your Honor.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Still in the books, isn't it?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Still of the books, we might well have argue that --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: If this is -- if this is, then I guess the question you are now arguing, we wouldn't have to reach, would we?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: There are about four constitutional questions --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I know, but if this is excessive delegation within Panama and Schechter and the others, then I take it, that would be the end of this case.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: That would be the end of this case, no doubt about it.</p>
<p>But I think this case is ended by Aptheker before you reach this sticky a question as a delegation question.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Aptheker did involve constitutional questions.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Pardon?</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Different constitutional questions.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Yes, the constitutional questions I'm now arguing, that is to say the unreasonable and from substantive due process point of view.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: But I don't suppose that it concerned you too much that this one off in Schechter language.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well, with the -- except in the decision that the Court rendered, obviously.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: It has always been on your favor.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Pardon?</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Excuse me.</p>
<p>I just thought you would say I was surprised if you had indicated that Schechter had been impaired, I do not recall whether it has been.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: I can't cite the cases to you offhand.</p>
<p>I can't cite all of the cases to you offhand, Justice Black but my -- our research brought us to the conclusion that delegation substantially has brought us the delegation of power in this case had been improved by the Court and perhaps I'm wrong, perhaps.</p>
<p>In any case, it seems to me that --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, I have not agreed to it and I that I thought and then it overruled the Schechter.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No, Your Honor.</p>
<p>I think that your views on delegation adhere much more closely to Schechter than that of some of the members of the Court.</p>
<p>Again, while the Act was in debate -- it is being debated in the Congress, the Department of Justice as Mr. Maroney has indicated, to the position that -- or opposed rather a proposal to bar persons from federal employment solely in the basis of their organizational membership.</p>
<p>Now, he stated and answered I think to a question from the Chief Justice that this statute cures the objection that the Department then found to that statute.</p>
<p>Of course, this statute doesn't cure the Department's objection, the Department changed its position.</p>
<p>The letter from the Department to the Committee of Congress which was considering that measure is quoted at page 513 of the Aptheker case and here's what acting Attorney General Ford said to that bill.</p>
<p>“The bill would brand the member of a listed organization a felon, no matter how innocent his membership; the loyalty program enables the member to respond to charges against him and to show, in a manner consistent with American concepts of fairness and justice, that his membership is innocent and does not reflect on his loyalty."</p>
<p>Now that's exactly the kind of a showing that this statute denies to Robel in this case.</p>
<p>There is no substance to the government's attempts to distinguish this case from Aptheker and let me address myself to the distinctions that the government urges in its brief, since Mr.Maroney spoke only very briefly on the question during his portion of the argument.</p>
<p>First, the government says that Section 6 is broader than Section 5 (a) (1) (D), the section were dealing with here because Section 6 supplies to Communist-fund organizations while this section applies only to member of Communist-action organization.</p>
<p>But Aptheker, invalidated Section 6 as applied to members of the Communist Party and to leading members of the Communist Party or persons characterized as top-ranking party leaders at that.</p>
<p>Second, the government says that the right to travel is more basic than the right to work.</p>
<p>This belies what it said in its brief in Aptheker case that the denial of passports and I quote “is a considerably milder disability than the loss of employment.”</p>
<p>Of course both rights are basic.Section 5 and Section 6 are, and they were intended to be complementary and together to make life intolerable for Communists.</p>
<p>As Justice Black put it in his dissent in the Party Registration case and I quote, “The Act makes it extremely difficult for a member of the Communist Party to live in this country and at the same time, makes it a crime for him to try and get a passport to get out”.</p>
<p>Furthermore, this Court in Wieman versus Updegraff and on the last term in Elfbrandt versus Russell, applied the rule invoked in Aptheker to invalidate a statute making membership in a Communist organization, a disqualification for employment.</p>
<p>The Arizona statute involved in Elfbrandt was narrower than Section 5 because it at least applied only to members having knowledge of the unlawful purpose of the organization.</p>
<p>The Court nevertheless invalidated the statute because it reached members who did not themselves subscribed to this unlawful purpose or engaged in unlawful organizational activities.</p>
<p>The government says this case is distinguishable from Elfbrandt because Elfbrandt involves state employment and less grave public interest or a more grave public interest is at stake here in the case of defense facility employment.</p>
<p>But certainly, some jobs in state governments, to which Section 5 applies are more security sensitive than many of the non-sensitive jobs to which this statute applies.</p>
<p>To give you only one example, only last week, up in New York, a member of the New York State police who was a minuteman was arrested, a minuteman who used his job in the New York State Police to filter all arsenal weapons for the use of the minuteman.</p>
<p>Elfbrandt invalidated the Arizona statute as to all state employment, sensitive or non-sensitive.</p>
<p>Because as it's stated at page 17 and I quote, “Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities, surely pose no threat either as citizens or public employees.”</p>
<p>Such persons surely pose no threat, these Elfbrandt words as defense employees either.</p>
<p>Next, the government argues that Congress had no less drastic means available than the means used in Section 5.</p>
<p>Says, that are being impractical to apply the screening technique of the industrial security program to defense facilities in view of the greater number of employees involved.</p>
<p>But -- and here's where the three million figure came from Mr.Chief Justice, the government says in its brief that way back as of 1956, 10 years ago, they had already screened three million employees under the industrial security program.</p>
<p>And Mr. Maroney said here this morning that he was advised that the defense facilities designated by the Secretary of Defense involved only about 1% of total employment in the United States.</p>
<p>Well, if you take the total figure of 70 million that would give us seven million employees of defense facilities of whom three million had already been screened way back in 1956.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I don't understand this, wonder why it's argued at that way, Mr. Abt, I thought that he said was that the 1% of 3000 was the facilities that he did not know the number of employees.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No.</p>
<p>At one point in his argument Mr. Justice Brennan, he did said that 1% of the number of facilities.</p>
<p>Mr. Justice Fortas asked him whether wasn't it true that there were great many more employees involved, and Mr. Maroney said, “No, I think not.</p>
<p>I've been advised by some of the defense department that the ratio is about the same”.</p>
<p>Besides which if practicality is a consideration, a more impractical measure than Section 5 would be hard to imagine.</p>
<p>Here it is, 16 years after the Act was passed and Section 5 hasn't yet even got off the ground.</p>
<p>If our security depended on its effectiveness, we would in pretty bad shape here 16 years after the Act was passed.</p>
<p>Finally the government says that the Aptheker was distinguishable because there is less risk in permitting Communists to venture abroad than in allowing them access to a defense facility.</p>
<p>This argument conveniently overlooks a lured picture of the travel menace that the government painted for the benefit of the Court in the Aptheker case.</p>
<p>But more to the point, the government can't cite a single instance in which a Communist employee of a defense facility was even suspected of espionage or sabotage during the whole 16 years that the Act has been on the books.</p>
<p>And the only instance it cites prior to the passage of the Act is based on the report of the House Committee on Un-American Activities, and as our brief shows has since been completely discredited.</p>
<p>The government also relies on the findings of Congress in Section 2 of the Act that Communist-action organizations seek to accomplish their ultimate political objective by espionage, sabotage, and other unlawful means.</p>
<p>But this finding is contradicted by the report of a Board which your company that's ordered, that's the Communist party register under the Act.</p>
<p>The report reviewed the party's activities at great length for the full period from its organization in 1919 to 1952.</p>
<p>It found by way of conclusion that the party operates primarily to advance the objectives of the World Communist movement but it doesn't find a single instance of espionage, sabotage or the use of any other unlawful means in this entire period under review and the report says there of any findings of unlawful party advocacy as it is of a finding of any other unlawful activity.</p>
<p>At most, the Board found that the party advocated violence only as a abstract and therefore protected political doctrine and this Court so viewed the findings in its 1961 decision upholding the registration order.</p>
<p>The decisions in the Aptheker and Wieman cases teach that the scienter required to disqualify a person from employment or travel because of membership in a Communist organization has actual knowledge that the organization has an unlawful purpose.</p>
<p>Mere knowledge of the organization has been officially condemned as insufficient for this purpose.</p>
<p>But even if the rule were otherwise, a member's knowledge of the registration ordered against the Communist Party couldn't supply the necessary scienter since the order was not accompanied by any finding of any unlawful party purpose of party activity.</p>
<p>A majority of the Court in the 1961 case held that such a finding of unlawful purpose or activity wasn't essential to the validity of the registration order because as Mr. Justice Frankfurter put it in his opinion, registration is a regulatory rather than a prohibitory statute.</p>
<p>We disagree with that view for the reasons that Chief Justice stated in his dissenting opinion in that case.</p>
<p>But however that maybe, the section we have here today, Section 5 (a) (1) (D) is clearly prohibitory.</p>
<p>As a result under the logic of your 1961 decision, the findings with respect to the Communist Party are insufficient to support the application of Section 5 (a) (1) (D) to members of the party.</p>
<p>Both the findings of the board and the showing of the government is made in this case demonstrate that the deprivation of liberty imposed by Section 5 of the Act has no real, rational, reasonable relation to the national security.</p>
<p>Simply another manifestation of what Senator Fullbright has characterized and I quote “As our morbid preoccupation with the danger of Communist subversion, a disease which has proved so costly to our personal freedom and perhaps more important to our national dignity.”</p>
<p>The lack of any rational basis for the statute leads the government in its brief to justify it as a war measure and to dismiss the lack of any declaration of war against the Soviet Union as a mere technicality.</p>
<p>After reading the President's recent speeches on the necessity of improving Soviet-American relations, I can only conclude that there has been breakdown in communications between the White House and the Department of Justice, on this phase of the case and one wonders what might not have been wiser to appoint it under Secretary of State as Attorney General rather than to have made the Attorney General under Secretary of the State.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Did you feel the same way if this involved picking?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: I'm going through the picking question a little bit later Justice Fortas if I may.</p>
<p>Pardon me?</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: In this connection?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well, I don't quite understand the connection because the statute has no application to --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I say if it then -- if it then would you feell, is it unreasonable to exclude from defense facilities persons who belong to organizations supposedly by hypothesis dominated by who were peaking action organization --</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: I certainly would, yes, on the basis of mere members in the organization everything that I've said about the statute applies irrespective of the nature of the organization.</p>
<p>We got to prove something more than organizational membership, that's what you said in Wieman, that's what you said in Aptheker, that's what you said in Elfbrandt.</p>
<p>I turn now to the First Amendment.</p>
<p>By punishing members of a radical or political minority for engaging in specified private employment, Section 5 (a) (1) (D) restrains the freedom of political association which the First Amendment protects.</p>
<p>The validity of the section must therefore be judged by First Amendment standards.</p>
<p>The applicable standard is that the legislation must be narrowly drawn so as not in the words of Scales versus United States and I quote “to cut deeper into the freedom of association and as necessary to deal with the substance of evils that the Congress has a right to prevent.</p>
<p>Both the blunderbuss impacts of Section 5 (a) (1) (D) on its face and its application to members of the Communist Party, an organization which has not been found to engage in unlawful activity invalidates the section under this standard.</p>
<p>The government's brief argues that Congress was justified in enacting the section in preference to a narrowly drawn screening program because you and I quote, “it has an immediate interim effect and requires no bulky administrative machinery to carry it into practice.”</p>
<p>But as this Court has so often held considerations of administrative convenience and efficiency that might be persuasive in other context can never justify the infringement of First Amendment freedoms.</p>
<p>And the interim effect of the section, a feature which the government seems to believe to be so desirable and advantageous is enough alone to invalidate the section because as this Court has said and I think it was in NAACP versus Button.</p>
<p>These are -- these First Amendment freedoms are delicate and vulnerable and the fact of sanctions is often sufficient to inhibit their exercise even if the sanctions are not applied.</p>
<p>The statute's chilling effect on the First Amendment freedoms of all Americans, Communists and non-Communist was depicted by President Truman in his veto message in which he said after reviewing the effect of a statute, the inevitable -- and I quote, “The inevitable tendency would be to express null obvious uncontroversial subjects.”</p>
<p>I'd like now to turn to three questions which haven't been touched on the government's brief and only one of which was touched on in request of Mr. Maroney's argument.</p>
<p>The first of these involves a question of statutory construction.</p>
<p>It is that the indictment is defective because it alleges only if the Communist Party has been ordered to register as a Communist-action organization but not that the Communist Party is in fact such an organization.</p>
<p>And I think Mr. Maroney inadvertently misdescribed the indictment when I was opening remarks and said the indictment charges that the Communist Party is a Communist-action organization.</p>
<p>There is no such allegation.</p>
<p>The only allegation is that it's been harder to register as a Communist-action organization.</p>
<p>His latter allegation that is to say the fact, the allegation that the party is a Communist-action organization was omitted because the government interpret Section 5 (a) (1) (D) as making the registration order against the Communist Party conclusive as to its character for the purposes of a prosecution under the section.</p>
<p>This interpretation is contrary to the text of the statute.</p>
<p>The introductory clause of Section 5 provides, and I quote, “When a Communist organization” and I interject to say that means under the statute either a Communist action or a Communist front organization, “When a Communist organization is registered or there is in effect a final order requiring such organization to register then it becomes unlawful for the members to do certain things.”</p>
<p>Section 5 (a) (1) (D), the subsection of that section which is immediately involved here provides and I quote, “If such organization referring back to a Communist action or Communist fund organization that has been ordered to register.</p>
<p>If such organization is a Communist-action organization then it is unlawful for the members to hold defense facility employment.</p>
<p>I think it's clear from this wording that Section 5 is applicable to the members of an organization which both is a Communist organization or in the case of Section 5 (a) (1) (D), a Communist-action organization and which is either registered or been ordered to register as such an organization.</p>
<p>In other words, Congress in this section made the existence of the fact and not only of the Board's finding as to the fact an element of the offense.</p>
<p>The wording of other criminal provisions of the Act cited in our brief showed that this result was deliberate.</p>
<p>Or one of them unlike Section 5 (a) (1) (D) and Section 6 (a) makes the fact as well as the findings an element of the offense.</p>
<p>Others like Section 6 (b) of the act, Section 10, Section 15 (a) clearly predicates the criminal liability only on the existence of a registration order and the finding by the board that the organization is that a Communist organization and not on its actual character.</p>
<p>The construction of Section 5 in accordance with its text as I've indicated it is required by the rule of strict construction of criminal statutes and as compelled, we think by three constitutional considerations that I'd like to indicate very briefly here.</p>
<p>First, the government's construction of the section denies appellee procedural due process because it precludes him from challenging in the criminal proceedings the validity of the Board's 1953 determination that the Communist Party was a Communist-action organization, a determination made in a proceeding to which it was not a party.</p>
<p>Moreover, even if it could be said that the appellee is bound by the Board's determination taken in his absence could still be entitled to litigate the current character of the organization or the current validity of the Board's determination which is now 13 years old and as the Chief Justice pointed out in his dissenting opinion in the 1961 case is based on evidence that's far more than 13 years old.</p>
<p>We -- our position is that the appellee is not accorded due process by Section 13 of the Act which permits a registered organization to apply periodically to the board for a redetermination of the status.</p>
<p>In the first place, this procedural is available only to organizations and not to individuals.</p>
<p>Therefore, it's not available to the appellee.</p>
<p>Furthermore, it's not available to the Communist Party.</p>
<p>Because under Section 13, an organization must first register in a Communist-action organization before it can apply to the Board for a redetermination of its status.</p>
<p>Now, the Communist Party hasn't registered under the Act.</p>
<p>It's still litigating the constitutionality of enforcement of that provision against it under the questions that are litigating the questions which is quite held premature in the 1961 case.</p>
<p>Obviously, it's got a right, a constitutional right to have those questions determined and the appellee can't be denied these constitutional rights because the Communist party is asserting its own.</p>
<p>The government's interpretation of the section would also invalidate it as a bill of attainder.</p>
<p>In the 1961 case, a majority of the Court held that the Act's registration requirement didn't obtain the organization.</p>
<p>This conclusion was based on the few that Section 13 would permit the party to secure a periodically determination of its status and hence that observance of the obligations, have registration and impales is made to turn on what the Court in its opinion called and I quote, “Continuously contemporaneous fact in this effect.”</p>
<p>But as I have shown the party can't secure a redetermination of its status so long as it resists the effort to enforce the registration requirement against it.</p>
<p>Nor paradoxically will that ever be able to secure a redetermination of it's status, if it's successful in the pending litigation and the registration order is found to be constitutionally unenforceable.</p>
<p>In any event, a Section 13 proceeding isn't available to the appellee.</p>
<p>Under the government's interpretation of the statute therefore which doesn't give the appellee to the right to contest the validity of the determination on the criminal trial, he has no possible escape from the effect of a Board's determination that the Communist Party is a Communist-action organization even if that determination no longer has any validity.</p>
<p>His position that is the appellee's position today is exactly the same as all of the Communist Party has been named in the Act.</p>
<p>The Board's determination that the Communist Party isn't a Communist-action organization, it has that effect as to him and that being so the statute as the government would interpret is invalid under the Court's decision in United States versus Brown.</p>
<p>The final constitutional difficulty that the government's interpretation of the section entails is that it deprives the appellee of the rights of indictment by grand jury, a trial by petty jury and proof of guilt beyond reasonable doubt.</p>
<p>This is so because Section 5 can't be constitutionally applied to him unless at least the Communist party is of characteristics which the Act attributes to a Communist-action organization.</p>
<p>Yet under the government's construction of statute this issue affect was withdrawn from the grand jury that returns the indictment and the petty jury that deprives the case and is confided to an administrative agency, the Subversive Activities Control Board which moreover is told to make its determination on the basis of the preponderance of the evidence and not on proof beyond reasonable doubt.</p>
<p>If this procedure were permissible, Congress could frame almost any offense in terms that would provide for the determination of essential facts by an administrative agency and thus bypass the jury trial of the most controversial factual issues on which criminal liability depends.</p>
<p>To cite, give you only one example, Congress to pass a statute saying that it's a crime for a taxpayer to refuse to pay, fail to pay a deficiency which the Bureau of Internal Revenue has determined because the taxpayer failed to report income which he earned making the Internal Revenue Services determination that taxpayer earn income and failed to report it are conclusive for the purpose of (Voice Overlap) cases.</p>
<p>Certainly --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: That suppose instead of a criminal sanction here, the -- and all of these procedures this doesn't spell down in the Act then it handed a notification to the employer and to the employee that the man is no longer suitable for employment and the employer has an obligation to discharge him.</p>
<p>Would that cure your problems?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: It would cure of the particular point that I'm now discussing Justice Fortas because we no longer have been talking about a criminal statute.</p>
<p>It wouldn't cure of the invalidity of the statute under Elfbrandt, under Wieman, under Aptheker, that the state's invalidity which resides in a fact that statute makes a the bare fact of membership without consideration of these other essential elements, a disqualification for employment.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Let's suppose that instead of talking about the Communist Party here, you were targeting that the society to blow up defense facilities of the United States and its so-called and that there is a finding to the fact that that was in truth and in plan and purposes as the organization.</p>
<p>Now, is it still your contention that such a case the person concerned will have to be given an opportunity to have a trial and prove that this society didn't really mean what it said?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Not that society didn't mean what it says but that the member didn't endorse the use of the society when it became a member; it may have become a member to reformat, it may have become a member because the FBI send them in there as a (Inaudible) agent, an informant.</p>
<p>It may have become a member for a lot of different purposes and you can wreck my view by changing the name of the outcome Mr.Justice Fortas because there is something much more essential involved here.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, that's what I'm trying to get at by this extreme example that it's like that I thought a few moments ago you we're expressing as one of your points here that the individual did not have an opportunity to challenge the determination made and applied in this case as to the purposes and character of the Communist Party.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: That's correct.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, then I ask you the in the case of the society for the purpose of blowing up to the defense plants would you say that the structure would be defective unless the individual had an opportunity to litigate everything?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Every case, that's what the Court held in the twin cases of Scales and Noto.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And even if that were -- even if the sanction were a civil one rather than it is termination of employment rather than a criminal one.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Now, you're asking me a very easy question.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Where -- this is a nifty business.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Right.</p>
<p>I have to think about it if you put it in terms of a civil sanction.</p>
<p>I still think my first reaction would be yes.</p>
<p>Under Elfbrandt, under Wieman, under -- which your civil cases, which involved only a disqualification, they're not a criminal penalty.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, I supposed as a cleared variant on this, we were talking about not about defense facilities in general but about top secret past be jobs where the person cannot work on top secret classified job if he belongs to this kind of a society.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Best answer I can give you on that Justice Fortas is what the Court of the Commission on Government Security said in 1957 and they would know that as fire out lifters I believe as I recall that as under the chairmanship of the President of the American Bar Association that was a tripartite commission, I think Senator Eastland former Chairman of the Un-American Activities -- pardon -- were both members of it and they said that -- they proposed the statute -- a model statute on government security which is printed as an appendix to their report.</p>
<p>And that statute proposal provides that mere membership in the organization is not sufficient that the body considering the security question must consider the purpose that the member had in joining it, his actual knowledge of the purpose of the organization and the degree of his participation in these activities.</p>
<p>And I go along with that.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: You would apply this even to the sanction of severing the person from the top secret job.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Yes, I would.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: That makes any kind of a security system very difficult.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: It's a kind of a security system that we've had during and ever since World War II with reference to defense contractors in the most secret jobs there are.</p>
<p>That the government, the industrial security programs sets up a screening system.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I know, but supposed (Voice Overlap) the state?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: And under the Department of Defense's regulations, mere membership is not disqualifying for security clearance in the access to the most secret work.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: That's because they've been able to litigate those very well.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No, it hasn't been a question of litigation --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Suppose that follows at hand and then he -- the government later thinks he ought to be removed for the reasons we've been discussing, do you believe that the government's without power to device any kind of a system to remove him without proof of -- to remove them on the basis of his -- the organizations to which he belongs?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Merely, on the basis of the bare effective organizational membership?</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I'm not going to the assumptions you want to about findings as to the organization.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Yes.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Let's take my -- the organization which I've referred about defense installations.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Mere, their membership isn't enough.</p>
<p>You got to show something more about the individual, personal qualities of the individual.</p>
<p>Otherwise, you're -- this is pure guilt by association and let me say well, a man is a fool to join such an organization that he doesn't believe in it.</p>
<p>But the fact that the man is a fool doesn't make him a security risk.</p>
<p>The government says that if they're required to prove the character of this organization in each prosecution under Section 5 that Section 5 would be unenforceable.</p>
<p>But as I noted in answering one of Justice Fortas' questions that's a precisely what this Court held that the government has to do in cases under the Membership Clause of the Smith Act in its decision in Noto versus United States.</p>
<p>Besides that, you have Section 5 is unenforceable.</p>
<p>It will be because the Act as a whole was unenforceable, as 16 years of ruthless litigation should by this time pretty well have established.</p>
<p>It's unenforceable because it attempts to do the impossible, to accomplish an unconstitutional purpose, the outlawry of a political party in a constitutional manner.</p>
<p>Any Congress surprised to accomplish this is bound to stumble.</p>
<p>The statute is bound to be unenforceable either because it's unworkable or because it's unconstitutional or both, as President Truman held or stated in his veto message was the case with this statute.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Mr. Abt, is it your position the government would also have to prove that the shipyard is a defense facility?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Yes, that's the next point that I was going to simply state.</p>
<p>We've argued it in our brief.</p>
<p>We didn't make the delegation point that you raised Mr. Justice Douglas -- Justice Brennan.</p>
<p>We do say that there's a violation of procedural due process here because of the Act affords no hearing whatsoever that the person's affected before a defense -- a plant is declared to be a defense facility --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Merely, a government-proof limited to the fact of the Secretary of Defense.</p>
<p>It designated that way, that as such.</p>
<p>You say it would not be sufficient.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: That's' not sufficient.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: (Voice Overlap) delegations.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well, we argued at the point of procedural due process that before a man's hurt by a designation, he's got the right to be heard as to the validity of the designation.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Now when someone said it might be a delegation to draw a one year period because there had been a point, wouldn't it?</p>
<p>You got to prove that the jury was --</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: That's not an issue of the trial.</p>
<p>And the indictment doesn't allege that the plant is a defense facility within the meaning of the Act, it only alleges a designation.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Your position is they would have to allege and prove, isn't that right?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: At a minimum.</p>
<p>I think even that would be insufficient because I think before a man's indicted for working in a defense facility, he's got a right to have a hearing as to whether the designation was a proper one or not.</p>
<p>And he can't have that hearing only in connection with a criminal trial.</p>
<p>He doesn't have to take a risk of violating a statute in facing a criminal trial before he can make that point.</p>
<p>My final point deals with the question that Justice Fortas raised.</p>
<p>We say that the section is unconstitutional as applied because the registration order against the Communist Party has been invalidated by facts of which this Court can and should take judicial notice showing at the world Communist movement described in Section 2 doesn't exist.</p>
<p>By definition there can't be a Communist-action organization unless there's a World Communist Movement that meets the Section 2 description.</p>
<p>This is so because the definition of a Communist-action organization is tied in with the findings of Section 2.</p>
<p>Section 33 defines a Communist-action organization as an organization which is controlled by the foreign government controlling the World Communist Movement described in Section 2 and which operates to advance the objectives of the movement described in Section 2.</p>
<p>Section 2 finds that there exists a World Communist Movement made up of Communist-action organizations which are not free and independent but are national sections of the World Communist Movement and are controlled by and subject to the discipline of the Communist dictatorship of an unnamed foreign country.</p>
<p>The Board found that this country was the Soviet Union.</p>
<p>Now on affirming the Board's order against the Communist Party, the Court in its 1961 decision held that the characteristics of the World Communist Movement and the source of its control as found in Section 2 are not subject to proof or disproof in the registration proceedings.</p>
<p>It regarded the finding of the Board that the Soviet Union was the unnamed foreign power referred to in Section 2 as a matter of law - question of law, a matter of statutory construction which it affirmed.</p>
<p>The Court recognized that a change in the world situation would invalidate this construction and that the time might come when in its words and I quote, “The board or a reviewing court will be able to say that the World Communist Movement as Congress meant in the term in 1950 no longer exists.”</p>
<p>Well, as Mr. Justice Fortas's question implies, the future world situation which the opinion envisaged has materialized.</p>
<p>Whatever may have been said about the Section 2 findings in 1950 when they were made, the description of Communism as a monolithic world movement under iron Soviet control dedicated to the overthrow of all free governments by a criminal means applies in the face of the facts of contemporary political life as everybody knows.</p>
<p>Yet for the reasons that I've indicated, neither the appellee nor the Communist Party can secure Board consideration of these facts nor could the appellee litigate the issue in this criminal trial since the Court in the 1961 case held the issue as one of statutory construction.</p>
<p>Accordingly, it's incumbent on the Court, this Court, to take judicial notice of the self-evident fact that in the words of your 1961 decision, “The World Communist Movement as Congress meant to term in 1950 no longer exists.”</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: You may get it -- what do you do with the point that let's take it -- let's assume your argument is correct and but let's assume that the change in facts is that they're now two world dominant Communist organizations, are Communist governments which dominate the World Communist Movement, does that make any difference to your argument?</p>
<p>That is to say and I don't personally happen to know of any facts which of I would be willing to take notice in a way to effect that there is no Communist government in the world.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No, of course not.</p>
<p>I'm not suggesting that.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: There is some evidence to the effect that there are now two powerful Communist organizations or what they had call both the dominant and not depends upon how you construe the word.</p>
<p>Does that make any difference?</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: I don't think it makes any difference Justice Fortas for this reason, what -- once they get beyond the fact or once we agreed that as everybody knows there's no single boss of the World Communist Movement anymore.</p>
<p>The whole premise of the Act is fictitious and the finding of the Board is fictitious.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Alright, I then say -- and all they say -- the difference that it makes is that you got to look to two Communist governments instead of one.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Yes, but not.</p>
<p>But if you say that then you're a legislating.</p>
<p>You're no longer applying your statute as this statute is based on the existence of only one.</p>
<p>And I submit in conclusion that declaration that this statute as drawn now.</p>
<p>It's based on a fictitious premise in the light of what's, we all know that that is overdue and moreover, that would have the wholesome effect of relegating not only Section 5 but this entire Act to where it belongs in a museum of antiquities along with the alien sedition laws, the Dred Scott case, the (Inaudible) as reminders of path transgressions of civil liberties in this country at times of national crisis and as a warning against the repetition of such horrors in the future.</p>
<p>Thank you.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Maroney</p>
<p>Rebuttal of Kevin T. Maroney</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Mr. Chief Justice may it please the Court.</p>
<p>I would just like to bring to the Court's attention in connection with these categories under the delegation of authority.</p>
<p>The five categories that we were quoting this morning were from the Defense Department's release that was made at the time these listings were placed into effect.</p>
<p>The similar criteria, frankly identical criteria which were before Congress are set forth at pages 443, 444 of the hearings on HR 9753 which is quoted in our brief -- cited in our brief.</p>
<p>There are very slight changes of a few phrases</p>
<p>For example, the first criteria stated to Congress was top secret projects, facilities engaged in top secret projects and then it was explained that that was meant to include top secret, secret and class -- and confidential which is the same really as important classified military projects.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Is that a recommendation in the Committee Report?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Yes, this is an explanation to the committee as part of the Defense Department statement that a tentative list had been prepared which fell into these categories.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, this is from the Department of Defense?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: Yes.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: To the committee?</p>
<!-- Kevin_T_Maroney--><p><b>Mr. Kevin T. Maroney</b>: To the committee, yes.</p>
<p>Now, I would also just like to address myself for a minute to the question raised by Justice Fortas as to whether or not it might have been appropriate or let's say more appropriate for Congress to have provided that a government agency could notify an employer and have the result of the employee being dismissed.</p>
<p>We think it's quite clear that Congress did intend the statute have an interim effect.</p>
<p>The purpose of course was to get these people who insisted on remaining members of the Communist-dominated, foreign-dominated group out of these places where in an emergency situation that they could do substantial damage.</p>
<p>If the alternative suggested were adopted, the person who is then a member of an organization such as this could merely continue his employment.</p>
<p>It could be that he would never be found out and he would have nothing to lose by doing so.</p>
<p>This way, Congress really puts him to making a choice of either remaining in the organization or giving up his defense employment for the purpose of getting him out there if he is going to remain associated with the organization.</p>
<p>Thank you.</p>
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Thu, 23 Aug 2012 18:31:06 +000068400 at http://www.oyez.orgUnited States v. Robel - Oral Reargument, Part incomplete/cases/1960-1969/1966/1966_8/reargument-e
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<a href="/cases/1960-1969/1966/1966_8">United States v. Robel</a> </div>
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Tue, 30 Aug 2011 03:20:20 +000079893 at http://www.oyez.orgDennis v. United States - Oral Argumenthttp://www.oyez.org/cases/1960-1969/1965/1965_502/argument
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<a href="/cases/1960-1969/1965/1965_502">Dennis v. United States</a> </div>
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<p>Argument of Telford Taylor</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Number 502, Raymond Dennis et al., Petitioner, versus United States.</p>
<p>General Taylor.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Mr. Chief Justice, members of the Court.</p>
<p>This case is here on certiorari to the Court of Appeals the Tenth Circuit and it involves appeals from judgments of conviction for the crime of conspiracy to defraud the United States under the appropriate clause of the General Federal Conspiracy Statute, 18 U.S. Code 371.</p>
<p>Now the nature of the unlawful conduct which this case involves arises out of Section 9 (h) of the old Taft-Hartley law enacted in 1947.</p>
<p>That Act was to be sure, repelled in 1959 and its successor, Section 504 of the Labor Management Act is the statute that Your Honors reviewed in the Archie Brown case last year.</p>
<p>But the indictment here antedates that repealer and that is why it is arising under the old law.</p>
<p>The old law, Section 9 (h) was before this Court in appropriate proceedings to test constitutionality in the Douds case and thereafter, there were various cases involving prosecutions for filing false affidavits, the Jencks case, the Travis case and various others that who've been here.</p>
<p>So I take it that the Court is generally familiar with the structure of that law which required that officers of labor unions file affidavits denying that they were members of or affiliated with the Communist Party as a precondition for a compliance status on the part of the union of which they were officers.</p>
<p>That Section 9 (h) incorporated as a sanction for filing false affidavits, the general federal statute known as the False Statements Act, 18 U.S. Code 1001.</p>
<p>So that the penalty for the false affidavits is that general criminal provision rather than any peculiar provision of the Taft-Hartley law itself.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And most of -- most if not all of the previous and other prosecutions other than this case had been brought under that statute, isn't it?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: They have indeed.</p>
<p>This is the -- there have been two conspiracy prosecutions Mr. Justice Stewart.</p>
<p>One in the West case in which certiorari was denied here and this is the other one.</p>
<p>This is the only other case in which a conspiracy to violate the false affidavit provisions has been charged.</p>
<p>Now the petitioners here are or they were at the time of the acts charged, officers and employees of the International Union of Mine, Mill and Smelter Workers which referred to in the briefs for aviation purposes as Mine, Mill.</p>
<p>And the gist of the charge against them is that they conspired -- is that they were at the time, members of the Communist Party, and that they conspired with each other that those among them who were officers would file false affidavits, false in that they denied Communist membership when in fact they were members and thereby obtained compliance status.</p>
<p>I should add that of the six petitioners here at the time of these circumstances, four only were officers and actually filed affidavits.</p>
<p>The other two were employees not required to file affidavits but charged as co-conspirators along with the four who did the actual filing.</p>
<p>These convictions were affirmed by the -- the trial was in the District of Colorado, the convictions were affirmed by the Court of Appeals the Tenth Circuit.</p>
<p>We filed a petition for certiorari on a number of grounds.</p>
<p>The grant of certiorari was limited to three questions; the first being the statutory sufficiency of the indictment, that is to say whether the allegations in the indictment sufficiently make out a charge of conspiracy-to-defraud.</p>
<p>Secondly, the constitutionality of Section 9 (h), which indeed had been sustained in Douds but which as we suggested in our petition, the authority of that case had been at least undermined by Archie Brown and therefore, the question of constitutionality was ripe for reconsideration.</p>
<p>And thirdly, a question not pertaining to indictment but to the trial itself and that is the denial of motions that we made at the trial to have produced the grand jury testimony of government witnesses who testified before the grand jury.</p>
<p>That motion is made in the alternative either for the production direct to us, the defense counsel, or failing that for production to the Court for in camera inspection.</p>
<p>Those motions were denied and that raises the third question, standing generally from the Pittsburgh Plate Glass decision of -- several years ago.</p>
<p>Now the limited grant of certiorari here I think obligates any necessity for any extended statement on the facts in the evidence.</p>
<p>But the Court will see that these cases of a certain age and it may assist a little bit if I indicate what the procedural steps had been and why it now appears here so long after.</p>
<p>The -- under statute repealed seven years ago, the indictment is a 1956, ten years ago and as the indictment shows, the overt acts and the initial affidavits filed here that were alleged to be false were filed as long ago as 1949, the time would be alleged conception of the conspiracy.</p>
<p>When the indictment was brought that the defendants of whom there were 14 charged in the indictment, filed a motion to dismiss on various grounds, including the constitutional ground which we did not argue below because the lower courts were then have been bound by Douds, but in which we seriously pressed the motion to dismiss on the ground of statutory insufficiency that there was no sufficient showing in the indictment of the necessary element of fraud.</p>
<p>That motion was argued before Judge Breitenstein, he was then the District Judge and he held it a long time and then was appointed to the Circuit Court of Appeals and without deciding the motion, he referred it to the late Judge Niles who is the Senior District Judge in the District of Colorado.</p>
<p>Judge Niles heard it argued a second time, held that a considerable period of time then denied it.</p>
<p>So the defendants didn't actually go to trial until 1959.</p>
<p>Then three of them plead nolo contendere, 11 went to trial.</p>
<p>The judge dismissed the charge against two, nine were convicted and we appealed to the Court of Appeals for the Tenth Circuit and the judgment was reversed on the ground of errors in the admission of evidence.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: What were the grounds?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Errors in the admission of evidence.</p>
<p>Inadmissible evidence pertaining to conspiracy and the Court of Appeals also directed the equivalent, two more defendants, so there is seven left and the seven left were tried the second time in 1963.</p>
<p>The jury acquitted one more and the six remaining are the petitioners here.</p>
<p>I should add that following the decision in the Archie Brown case, we filed a petition for rehearing in the Court of Appeals, alleging the new grounds but that was denied.</p>
<p>Now the evidence is summarized on page 5 of our brief, but I think I need not advert to it farther.</p>
<p>The general gist was a period of noncompliance followed by a decision that compliance was necessary, filing of these affidavits for the purpose of securing compliance and that really is the whole story.</p>
<p>The rulings of the trial I have already averted to in connection with the grand jury in minutes.</p>
<p>I would like to discuss with I hope appropriate affirmity each of the three points we have raised in the petition and I will deal first of course with the points relating to the indictment and in accordance with the general principles about postponing constitutional questions if other grounds are available.</p>
<p>I will first discuss the statutory point.</p>
<p>Now the two clauses, the 18 U.S. Code 371, the conspiracy statute has been here many times of course.</p>
<p>It punishes the conspiring either to commit any offense against the United States or to defraud the United States or any agency in any manner and so forth.</p>
<p>And there have been, over the years, repeated decisions indicating that those two clauses of the statute are not mutually exclusive, but they are distinct that they are in part overlapping that they are not congruent that an indictment to be valid under that statute must contain a proper charge of either one element or the other or both.</p>
<p>To be brought under the offense clause, a statutory offense must be charged to the -- the indictment.</p>
<p>To be brought under the fraud clause, fraud must be charged as an element of the offense or to be brought into both you must have both elements.</p>
<p>Now in this case, we have an indictment brought in the language --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Of the actual fraud as an element of the offense is it -- it has to be a conspiracy to defraud, but it doesn't need to be successful to defraud.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: That's quite right Mr. Justice Stewart and it does not need to be successful, but the charge must embody a charge of intent to defraud the government if it is to survive under the foreign clause and that charge must be substantiated by the underlying allegations --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: For the purpose of the --</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes.</p>
<p>The case that we most particularly rely on in this connection is the Bridges case in 346 United States.</p>
<p>Now the Bridges case in this application here, stands for two propositions which we think are governing.</p>
<p>In the first place, that the clause invoked by the government, the invocation is not determinative, the government cannot make out a case under the fraud clause simply by saying it would like to do so.</p>
<p>Simply by saying conspiracy-to-defraud, that's not enough.</p>
<p>You must look through to the substance of the charge to see whether fraud is indeed there.</p>
<p>And the second thing that Bridges case held was that if the unlawful element in the conspiracy is indeed a statutory offense, then it will not lie under the fraud clause unless fraud is an essential element of that offense.</p>
<p>In the Bridges case itself, the charge was conspiracy-to-defraud the government by making a false statement and a naturalization proceeding and the Court held that default statement in the naturalization proceeding is itself statutory offense and that it is an offense whether fraudulent or not that any false statement, fraudulent or not, is punishable under that statute.</p>
<p>And therefore, since the offense constituting the unlawful element of the conspiracy did not necessarily involved fraud, the conspiracy-to-defraud had not been made out.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Maybe we're talking about different cases or maybe we're talking about the same one I'm -- I'm misinformed, but I had -- my understanding the Bridges case was that it involved statute of limitations in the War-time Suspension of the statute of limitation --</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: We're talking indeed about the citations (Voice Overlap)</p>
<p>We are talking about the same case.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: (Voice Overlap) -- that I don't remember you state in your argument.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: I did indeed, yes.</p>
<p>It did involve the War-time Suspension of Liabilities Act, but that was exactly the same question.</p>
<p>If a conspiracy-to-defraud were properly charged, then the War-time Suspension would have applied and the statute of limitations would not have run, but since a conspiracy-to-defraud was attempted to be charged but unsuccessfully charged, the War-time Suspension Act did not apply and the prosecution was barred.</p>
<p>That is I think with all respect is the precise holding of the case.</p>
<p>Now, applying that here, and may it please the Court, the statute involved here is 18 U.S. Code 1001.</p>
<p>The only unlawful thing that the defendants are charged with doing here is agreeing to file and indeed filing false affidavits.</p>
<p>If no affidavits have been filed, there would be no conspiracy.</p>
<p>If the affidavits had been true, there was no conspiracy.</p>
<p>The only unlawful element in the whole picture here is the charge that these affidavits were false.</p>
<p>Now, this Court has twice said and the lower federal courts have repeatedly held that under 18 U.S. Code 1001 fraud is not an essential element.</p>
<p>This came up for a recent consideration in the Grainger case which was just argued together with Bridges and decided at the same time and the Court in the Grainger case, speaking through Mr. Justice Burton, drew the distinction between the so-called false claims statute, where the case held fraud is an essential element, and the False Statements Act involved here which the Grainger opinion said does not involve fraud as an essential element.</p>
<p>Therefore, and as I say, there are many lower court cases holding the same thing that fraud is not an element under the False Statements Act, we say here that the government has indeed endeavored to charge a conspiracy-to-defraud.</p>
<p>They have tried to invoke that clause, but all they have actually done is charge a conspiracy to violate 1001 and fraud is not an element of that statute anymore than it was of the statute in Bridges case.</p>
<p>Now, may I point out one other quite relevant factor here, this case is I think a clearer one for the dismissal of this indictment than was Bridges.</p>
<p>In the Bridges case, one could and indeed the Government did argue that the United States have relied on the truth of the statement.</p>
<p>The statement alleged to be false there was that Bridges in the course of naturalization proceeding was asked whether he had been a member of the Communist Party and said no.</p>
<p>And the Government's position was that in reliance on that denial, the Government naturalized him.</p>
<p>That cannot be argued here because in point of fact, the National Labor Relations Board did not rely on the truth of this affidavit.</p>
<p>The initial procedure before the Board was indeed that they would pass on the truth or falsity of these affidavits, but Your Honors in the Leedom case and Meat Cutters case, held that this was not a matter for the Board's determination that all that the Board was interested in was getting an affidavit and compliance status followed whether or not the affidavit was false or true.</p>
<p>Indeed, the prosecution for filing a false affidavit could follow, but noncompliance did not follow.</p>
<p>Therefore, nothing so far as the Board was concerned hang-on the truth or falsity of these affidavits and there was therefore no reliance in the sense of a fraud prosecution.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Is there a statute of limitations question involved in your argument?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: No, there is not directly Mr. Justice Harlan.</p>
<p>It is possible that if this were construed as an indictment for conspiracy to commit an offense, that some of the initial affidavits would now be barred.</p>
<p>There are complications there because of a change in the statutory period in the course of the -- from three years to five years in the course of that and I really don't think it is pertinent to the body of my arguments.</p>
<p>I would prefer not to get into it, that is not a crucial part of our contention here.</p>
<p>We do however say that there was prejudice but we are not making a purely technical argument here and the -- of course, I never know whether the word technical means in argument if it is stronger or weaker, but we do feel that this is not purely a form of proposition.</p>
<p>The Government suggests in their brief that there is no real prejudice here, but we suggest there is.</p>
<p>If all that has been done here is to charge the defendants with conspiracy to commit an offense, and the Government addresses that up with fraud language, well fraud indictments are read -- the indictment is read to the jury.</p>
<p>Of course, juries are always instructed that the indictment is only a charge and not a proof but any trial a lawyer knows that what the jury hears from an indictment, does make a difference.</p>
<p>The view that people take charges of fraud is very different in the view they take of some kinds of offenses.</p>
<p>We have cited in our brief situations where judges in sentencing have indicated that they've view a charge of conspiracy-to-defraud as the very much more serious one than conspiracy to commit an offense.</p>
<p>So that in all of those ways, prejudice was certainly possible whether they are not, then as Mr. Justice Harlan suggested, there may also be a statute of limitations problem too.</p>
<p>I would suggest in conclusion on this point that there is also a general policy problem.</p>
<p>The clause of that statute having to do with fraud, that is the conspiracy-to-defraud, has been a good deal criticized in recent years as being too loose and imprecise and being a relic of days when conspiracy concepts were not as tight as the Court has drawn in more recent years.</p>
<p>And that there is already a need for other than as a vague catchall, but the Government should be required to specify a statutory offense as the object of an indictment.</p>
<p>And however that may be, there's no suggestion that it is beyond the power of Congress to do this, but we don't think the Court should extend the application of the fraud clause to cases clearly covered by the offense clause under these circumstances.</p>
<p>Now, I would like to pass to the sector of the points, the constitutionality of Section 9 (h).</p>
<p>Our basic argument here is that this case is governed by the Archie Brown decision that there is no meaningful distinction between this case and the Archie Brown case.</p>
<p>The Archie Brown case was decided in this Court on the basis of the bill of attainder and we suggest that what the Court decided there is plainly applicable here.</p>
<p>I will deal in a moment with distinctions which might suggest it.</p>
<p>We also say that the statute is unconstitutional under the First Amendment.</p>
<p>The Archie Brown case itself was decided in the Court of Appeals, not on the basis of bill of attainder but on the basis of the First Amendment and we think that that is an adequate alternative attack on the constitutionality of the statute.</p>
<p>I should add that we think that second branch of attack under the First Amendment is considerably strengthened by the decision on the -- in the Elfbrant case to which I'll advert in a moment.</p>
<p>The Court has so recently and so completely reviewed the bill of attainder concept that it doesn't seem to me it would serve any useful purpose for me to pursue at length.</p>
<p>The basis of the concept as a particular application in Archie Brown.</p>
<p>I'm aware of course that the Court was sharply divided in the Archie Brown case.</p>
<p>I am aware too that the -- and the constitutional dimension of stare decisis is not as often respected.</p>
<p>Nonetheless, the case is recent, fully considered and I would therefore like to devote my time to possible distinctions rather than any basic reexamination of the doctrine.</p>
<p>The Government has suggested that the Archie Brown decision is not applicable because in that case, the Court was concerned with a criminal sanction, Section 504, which imposed a criminal sanction against simultaneous Communist membership and union officership, whereas here the sanction is non-criminal -- is the pressure for -- on unions who wished to have a compliant status and as that Government puts it the discouragement which it affords to Communist being the way the union officers.</p>
<p>We cannot see that that distinction between the criminal and the non-criminal sanction is sufficient.</p>
<p>Cummings against -- Cummings case, Ex parte Garland, the Lovett case, none of those were criminal cases.</p>
<p>There is no suggestion in the majority opinion in the Brown case, that is the distinction between a criminal and another sanction should be governing, nor as I recall it that is suggested in the minority opinion.</p>
<p>The majority opinion in the Brown case did suggest the different distinction and that is that in 9 (h), one could lift one self out of the sanction category by resignation from the Communist Party whereas in Archie Brown, there was a five-year provision so that an immediate resignation would not have resulted in lifting the ban.</p>
<p>The Court did point that out in the Douds case -- in the Brown case, but once again, the majority opinion itself suggests that that may not be a sufficient distinction that the bill of attainder concept may operate whether the purpose is retributive for the past or ameliorative for the future.</p>
<p>The Government as far as I can see has not advanced that as a suggestion in their brief.</p>
<p>These are I believe the only two possible basis for distinguishing this from the Brown case and I would suggest that they are -- either of them sufficient.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Am I correct in my recollection that the dissenting opinion in the Brown case said that there was no distinction or (Voice Overlap) --</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: I believe that's correct Mr. Justice Stewart.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: -- or suggest (Voice Overlap) --</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: -- there probably was no distinction.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes, I believe so.</p>
<p>Now so far as First Amendment is concerned, may I point out what I believe is the most important factual circumstance here and that is that the indictment is barren of any charge with respect to the nature of the defendant's Communist membership.</p>
<p>There is no suggestion that they knew anything about the aims of the Party.</p>
<p>There is no suggestion about activity.</p>
<p>There is no suggestion about intent.</p>
<p>Therefore, the Section 9 (h) has been applied throughout and I think must be regarded today as a statute where the sanction applies to bear membership, nothing more.</p>
<p>In the Scales case, you have the element of knowledge of the unlawful purposes.</p>
<p>The Elfbrandt case decided on Monday, the dissenting opinion does indeed make much of the fact that's in the statute there it was limited to members who knew the unlawful purposes of the organization.</p>
<p>There's no such requirement here.</p>
<p>The sanction applies whether or not there's any such knowledge or any degree of activity or intent and the Court of Appeals the Ninth Circuit on those rounds held Section 9 (h) unconstitutional under the First Amendment as it did not fulfill the requirements stated by this Court in the Scales case.</p>
<p>The Court of Appeals for Ninth Circuit decided that case three days before this Court decided the Aptheker case.</p>
<p>The Court of Appeals for the Ninth Circuit of course felt bound by Douds and therefore felt bound to distinguish it and distinguished Douds on the ground that that was a criminal -- that that was a non-criminal sanction whereas 504 is criminal.</p>
<p>But the Aptheker case which came down three days later, removed I suggest the basis for that distinction.</p>
<p>There was no criminal penalty there either, nor is there in the Elfbrandt case.</p>
<p>So again, although one can point to the difference between the criminal and the non-criminal treatment, one can point to the five-year provision as differences, it does not seem to us that those differences are meaningful for either of the constitutional arguments we are advancing here today.</p>
<p>Now, the Government does however advance a further argument with respect to our right to raise a constitutional issue.</p>
<p>Their argument is that since the charge here is one of filing false affidavits that we cannot be heard to challenge the constitutionality of the statute under which they're filed.</p>
<p>We do not think the argument is substantial.</p>
<p>We have dealt with it as carefully as possible in our reply brief.</p>
<p>The Government has made essentially here two points.</p>
<p>First, they draw an analogy to the privilege against self-incrimination and say that if a man has on the stand and would be entitled to invoke the Fifth -- the privilege against self-incrimination, but does not and proceeds to ask the question and answered it falsely he can be indicted to perjury.</p>
<p>Of course, we don't contest that proposition, but it seems to us wholly extraneous to anything here.</p>
<p>In the case, the privilege against self-incrimination, there is no problem of the authority of the tribunal to put the question.</p>
<p>This is a matter of personal privilege which under circumstances of possible self-incrimination gives a person privilege not to answer but it has nothing to do with the authority of the tribunal to put the question, the question may be highly relevant to the testimony.</p>
<p>Whereas here, the whole problem is whether there was any authority to demand this information at all.</p>
<p>The Government's other contention here is based upon two cases decided by this Court around 1933, a little later, 302 U.S. and 303 U.S., United States against Kapp, United States against Kay.</p>
<p>These were cases, one under the Homeowners Loan Act and one under the Agriculture Adjustment Act, where the defendant had gone to seek a bounty from the Government, a bounty or a benefit and had gotten it.</p>
<p>He got a benefit payment under the Agriculture Adjustment Act or false statement have been submitted to the Home Owners' Loan Corporation as a basis for a loan and the Court said there that having done that, he could not escape a perjury charge or false statement charge by challenging the overall constitutionality of the AAA Act or the Home Owner's Loan Act.</p>
<p>Well, that is very far moved from our situation.</p>
<p>This is no case where the defendants have gone seeking any bounty or privilege.</p>
<p>The labor -- the Taft-Hartley Act was a Regulatory Act imposing restrictions on what unions and management could do.</p>
<p>The Douds case itself, the opinion for the Court made it quite clear that this is to be regarded as a restrictive statute, not one conferring any benefits on those subject to it and the Government's position really amounts to this, that the Government can at any time pose a demand for information to an individual and force him to the alternative of either disclosing the information or engaging in litigation with the Government.</p>
<p>No matter how unconstitutional, no matter how unauthorized the demand for information, the defendant can be put to that choice.</p>
<p>Well, we suggest that that would lead to very arbitrary and oppressive consequences.</p>
<p>We have detailed our argument on the reply brief and I shall leave it at that point and go to our third point.</p>
<p>I am now away from the validity of the indictment and on the question of the access to the grand jury minutes.</p>
<p>This question of access to grand jury minutes of government witnesses was argued here a few years ago in the Travis case.</p>
<p>The Court didn't reach it because the case went off on grounds of venue.</p>
<p>The problem stems from the Court's decision in Pittsburgh Plate Glass and the ensuing practice in the Circuit Courts following that decision which has been far from uniform.</p>
<p>Now, as we understand the Pittsburgh Plate Glass decision, it held that if a defendant in a criminal trial where a witness has testified against him -- who has testified against him has also testified before the grand jury.</p>
<p>If the defendant requests access to the grand jury testimony for purposes of impeachment, direct the access by the defendant is conditioned on showing of particularized need, is the phrase used in the opinion.</p>
<p>In Pittsburgh Plate Glass, the contention was also made here that regardless of production of the minutes to the defendant, that they should have been produced to the Court for scrutiny in camera to decide whether anything in their would be useful for impeachment.</p>
<p>The Court in Pittsburgh Plate Glass didn't raise that question -- didn't reached that question because apparently the contention had not been made at the trial and therefore, the opinion did not reach it.</p>
<p>It left open, whether any particular showing should be required as a basis for in camera examination.</p>
<p>Because of this conceptual dichotomy in the opinion, at the trial in the present case, we made our motion in the alternative.</p>
<p>If the Court would care to see the terms in which the motion was initially made, the record at page 64 has the initial colloquy following the first witness and it will be seen there that we made a motion in the alternative.</p>
<p>We asked first that the witness signed and testified in court and before the grand jury that the minutes being made available directly to us.</p>
<p>That if the Court would not grant that motion then police with the Court itself examine the minutes in camera and turnover to us any minutes which they thought to contain testimony that would be useful for impeachment purposes.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Are they -- the motion with respect to specific witnesses?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: There is a motion with respect to each witness.</p>
<p>With respect to -- I think all but one of the witnesses, the motion was made that the conclusion of the direct testimony and then repeated at the clause of cross-examination.</p>
<p>With one witness, I think we neglected to renew it at the close of cross but yes, a motion is made in each instance on an individual basis.</p>
<p>Now, Mr. Justice Harlan, the practice in the lower courts in situations such as your question is directed to has varied.</p>
<p>There have been practically no decisions producing the grand jury testimony directly to the defense.</p>
<p>That possibility seems to have disappeared, but with respect to the in camera examination in the Second Circuit, the practice has been substantially automatic.</p>
<p>That if a government witness, a prosecution witness has testified before the grand jury and the defendant asks the testimony in every case the judge will look at it and see whether it contains anything useful for impeachment purposes.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: That is in the Tenth Circuit?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: No, in the Second Circuit, in the Second Circuit.</p>
<p>No indeed, that's not the practice --</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: In the second half of it [Inaudible]</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: No, the practice in the other Circuits has varied and in the Tenth Circuit where this case comes from, the practice has been highly restrictive and grand jury minutes have not been turned over even upon the showing that we made here.</p>
<p>In the District of Columbia, there has been a sort of median approach to the problem.</p>
<p>So there has been no uniformity and for that reason, the Court may think it's appropriate if it should reach this point to review the policy factors which seemed pertinent here.</p>
<p>We could --</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: These objections in this case will demand [Inaudible]</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: In our case?</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: In the Pittsburgh where you had to file some [Inaudible]</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Well Mr. Justice Clark, under Pittsburgh as I understand it, Your Honor spoke of particularized need only in connection with production directly to the defense and did not lay down that requirement as a pretty requisite for in camera inspection by the Court, that was specifically left over.</p>
<p>Therefore, we would say that so far as our in camera request is concerned, we shouldn't have been called upon to show particularized need, anymore than you are in the Second Circuit today.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: I was thinking [Inaudible] in the factual examination once they will then present this to the grand jury.</p>
<p>In -- in all the cases [Inaudible]</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Well, the judge has to do that with statements made to the government under Section 3500 today and the pertinent policy factor seem to us very -- they're now over here.</p>
<p>If a witness has indeed testified before the grand jury and then testifies to court, it seems to us that a function and interpretation of the Sixth Amendment and the right of confrontation would really call for access to these records to use for any impeachment purposes that they're offered.</p>
<p>Now, however, we do think that our showing a particularize need here was adequate, we did.</p>
<p>The colloquy is on page 64, there with respect to first witness and argument was again made after another witness, the record references are on the brief.</p>
<p>We pointed out to the Court discrepancies between the testimony is given on the second trial and at the first trial, and at various other trials where the same witnesses had testified involving petitioner Travis.</p>
<p>There had been separate proceedings involving Travis before this at which some of these witnesses have testified.</p>
<p>So we think the showing of particularized need was in all respects, adequate and indeed if I read the Government's brief correctly, I cannot see that they seriously challenge our view that the minutes should have been produced for in camera inspection.</p>
<p>We think that there is a strong argument to be made for production directly to the defense that it would be one thing to have the trial judge screen the testimony to eliminate material which is plainly and totally irrelevant.</p>
<p>I mean, if a witness has been called to testify about three or four different matters, obviously the defense only needs that part of his testimony that relates to the case, but we don't think it's in keeping with the Jencks case or Section 3500, to have the judge pick out only those parts of the testimony that he thinks are material -- are inconsistent.</p>
<p>That's a decision that should be left it seems to us to the trial counsel.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: The Section 3500 doesn't in terms govern the situation at all --</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Section 3500 does not in terms govern the situation at all, no.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, are you making a constitutional argument on it or is that --</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: No, I'm not Your Honor.</p>
<p>There's no need to here because this is a case from the federal courts and would seem to us a statutory and supervisory considerations are quite sufficient.</p>
<p>I did suggest --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: What statutory consideration?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: What statutory considerations?</p>
<p>There are no statutes relating directly to grand jury problem, Your Honor, no.</p>
<p>I was there -- what I had in mind there was the --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Is the analogy [Inaudible]</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: The Congressional attitude is suggested in 3500 which seems to us to apply by analogy here.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: That is definitely the problem [Inaudible]</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Pardon?</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: Do you think that is not [Inaudible]</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: The purpose of 3500 (Voice Overlap) yes, it seem --</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: -- and the government [Inaudible] does not have taken [Inaudible] together.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Well, it's a statement made on the record and in official judicial proceeding for the grand jury.</p>
<p>Indeed, it seems to us that this is -- is rather more eligible for submission to the defense even than statements made to government agents, where you have the problem of verbatim transcription.</p>
<p>Section 3500 has precipitated all these problems about what is a statement and what isn't, and whether a thing is sufficiently verbatim to be legitimately used from impeachment.</p>
<p>Well, you don't have that problem here because you got a closed witness on a graph of record.</p>
<p>It's as accurate as anything can be and this is the case where there is no real interest in secrecy left.</p>
<p>The witness has been exposed in the sense that he's been produced in court and has testified, what reason is there, why the defense shouldn't have access to that testimony.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: That did not [Inaudible] reason any longer.</p>
<p>It began [Inaudible] perhaps does the -- perhaps they don't see how you could say they found [Inaudible] at any respect whatsoever by having [Inaudible] on the grand jury investigation.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Well, perhaps I've misspoken myself Justice Clark.</p>
<p>I don't at all mean to suggest that it in terms governs.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: I understand.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: It does manifest a Congressional policy that defendant should be given access to certain kinds of statements useful for impeachment.</p>
<p>We say those considerations are equally applicable to grand jury minutes, that the defendant has just as much needed them and for the same reasons.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: General, you get any comfort out of Rule -- Criminal Rule 16?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: I don't know Mr. Justice Fortas.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, that the Rule provides that -- first, for general secrecy and otherwise a general opinion third clause [Inaudible] that may disclose, that is the current judge in the grand jury although when directed by the Court preliminary or in connection with the judicial proceeding or when committed by the Court to the effects of the defendant to punish her and grants may exist or mostly in dismissing indictment because that's prior before the grand jury specific part being the power given to the Court in -- really without much qualification in connection with the judicial proceeding.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes.</p>
<p>Yes Mr. Justice Fortas, I -- I wouldn't think that there is any question about the power of the Court to do this and the Rule would seem to bear that out.</p>
<p>I do right now, there remains a problem here in that -- and the grand jury minutes may be very loose in subjects they cover.</p>
<p>There may be need for some kind of screening on materiality but not on inconsistency.</p>
<p>Anything material to the case it seems to me once the witness has testified should be made available.</p>
<p>The only --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I have another half of that question if may I ask you and that is this.</p>
<p>I note that the Government urges that if we go along with you in your attack on the failure to examine the grand jury transcript or failure --</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- to this defense counsel access to it, that proper remedy would be to --</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Revamp.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- refer this, not to make it but to refer it, this specific matter to the prior judge.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes.</p>
<p>Mr. Justice Fortas, that's the very matter (Voice Overlap) --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- in your prior brief you don't really comment on that except to express your opposition to it and I'd be very interested in your views.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Well I think there are two reasons why that course of action is not suitable here.</p>
<p>It would be suitable if the Court should decide that only in camera inspection is called for.</p>
<p>But if as we contend this is a case where a particularized need has been shown and therefore the minutes should have been made available to the defense directly rather than for in camera inspection.</p>
<p>Obviously a remand is not going to resolve that problem.</p>
<p>The second one is even more fundamental and that is that one of the four witnesses here is a witness who testified in the first trial and then died and his testimony was read at the second trial.</p>
<p>Now, at the first trial, we had objected -- I beg your pardon at the first trial, we had requested his grand jury testimony and had been denied.</p>
<p>There's obviously no way that that error can be rectified now.</p>
<p>So we say for those two reasons, a remand is not sufficient.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I don't understand that.</p>
<p>On the second trial, these witnesses grand jury testimony was granted.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: No, it's actual testimony.</p>
<p>This testimony given at the first trial --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I remember that, yes.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: -- was granted a second trial.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: I see and you had not had access.</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: So that to give you the relief that you want if that witness is on a subsequent trial and that witness' testimony could not be used --</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes sir.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- or this right to dismiss the case for this as fatal error for all the time, is that right?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Right.</p>
<p>If the Government can prosecute the case again without this witness, that's another matter.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Lewin.</p>
<p>Argument of Nathan Lewin</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Mr. Chief Justice, may it please the Court.</p>
<p>Petitioners have been convicted of violating the general conspiracy statute, 18 U.S.C. 371 and under this Court's limited grant of certiorari, three separate grounds for reversal are presently being asserted.</p>
<p>Petitioner's contentions have been presented in their briefs and in ours and in petitioner's oral argument in the following sequence.</p>
<p>First, they've argued that the indictment under which they were charged was defective in that it accused them of having defraud, conspire to defraud of the United States whereas the body of the indictment alleged a conspiracy which did not require for defraud, in other words a conspiracy to commit an offense against the United States.</p>
<p>Second, petitioners have argued that their convictions are unconstitutional because Section 9 (h) of the Taft-Hartley Act which imposed the underlying affidavit requirement was an impermissible exercise of legislative power.</p>
<p>And their third contention has been that their trial was improperly conducted in that procedural error was committed with respect to the grand jury testimony of government witnesses.</p>
<p>Before discussing each of these three contentions, I think it is important to call to the Court's attention the difference between each of them in terms of the result -- of the resulting judgments if any of them should be sustained.</p>
<p>Taking first the grand jury contention, if there were a reversal on that ground alone that would mean at most a new trial under the present indictment.</p>
<p>And as I will try later to explain our view of course that a remand would be sufficient, but at most it would mean a new trial under the present indictment.</p>
<p>It would leave undetermined the question whether the indictment is valid and whether a prosecution such as this one is constitutionally permissible.</p>
<p>The constitutional challenge is the other extreme because that would, if successful, bar any further prosecution of these petitioners for the offense alleged in the indictment and the first ground asserted by the petitioner is the alleged flaw in the indictment caused for it to have a different result and that the evidence could then be represented to a new grand jury which despite the lapse of the limitations period would be entitled to enter a fresh indictment and then under charging an offense to commit to United States under 18 U.S.C 3288 which authorizes re-indictment in case of a flaw in the indictment after the lapse of limitations period and there would then be a new trial.</p>
<p>Now I call these differences to the Court's attention because it appears to us that from the vantage point of sound judicial administration, the three issues before the Court might well be considered in the order in which they would most probably obviate any need for unnecessary duplication or repetitive later trials since the -- both the constitutional issue and the statutory questions would not be mooted simply by remanding the case for a new trial.</p>
<p>In other words, basic to the right to try these petitioners is the constitutional challenge and if as we believe there's no merit to that constitutional claim, it would nonetheless be vain to retry them under the present indictment if there was still a cloud over the question whether they could be tried for conspiracy-to-defraud.</p>
<p>Consequently, if the Courts please, I should like to discuss first the constitutional claim which really our basic proposition is, that it is not a constitutional claim at all or at least that the resolution of the constitutional issue would not affect the validity of the petitioner's convictions.</p>
<p>Then second, the alleged flaw in the indictment, and finally, the district judge's treatment of the motions regarding the witnesses' grand jury testimony.</p>
<p>Now we particularly urge that the questions be considered in this order, because the convictions presently before the Court are the result of a second trial of these petitioners and it is now almost ten years since the indictment was filed.</p>
<p>Our position of course is, that none of the three contentions warrants reversal of the judgments of conviction.</p>
<p>That we also believe that it would not be in the interest either of petitioners or of the Government to remand this case or in the interest of judicial administration and the conservation of judicial resources to remand this case without -- if the case will remand for a new trial without removing the clouds that are presented by the constitutional issue and by the statutory claim.</p>
<p>I turn therefore first to the constitutional issue.</p>
<p>The Taft-Hartley Amendments of 1947 added to the National Labor Relations Act, Section 9 (h), was in turn repealed the 1959 with the Landrum-Griffin Act of that year.</p>
<p>That provision states that the National Labor Relations Board shall make no investigation and issue no complaint on behalf of members of the union or on behalf of the union itself, unless that union or its members or its officers have filed with the Board affidavits of each of the officers stating that he is not a member of the Communist Party or affiliated with the party.</p>
<p>Petitioners were convicted on a one-count indictment which charged them with having conspired in violation of the General Conspiracy Statute to defraud the National Labor Relations Board by filing -- first, by filing false affidavits, second, obtaining a certificate of compliance and then third, using the facilities of the National Labor Relations Board with knowledge of the underlying fraud.</p>
<p>Their claim is that because Section 9 (h) is allegedly unconstitutional, that constitutional infirmity vitiates their convictions.</p>
<p>Our principal position is that the constitutionality of Section 9 (h) does not affect the validity of petitioner's convictions at all.</p>
<p>It is important in this regard to consider what Section 9 (h) commands to the extent that it has a command and what the petitioners are convicted of having done.</p>
<p>Section 9 (h) conditioned the availability of the facilities of the National Labor Relations Board on the filing of non-Communist affidavits by union officers.</p>
<p>It said to officers in effect, if you want your union to enjoy the facilities of the Labor Board, you must be prepared to file non-Communist affidavits.</p>
<p>To the extent that Section 9 (h) could be violated at all, it can be said something violated, it had a self-executing sense.</p>
<p>In other words, if officers violated it, if they've failed to file affidavits, their union was barred from enjoying the facilities of the National Labor Relations Board.</p>
<p>But the petitioners were not charged in having violated Section 9 (h) which could be done by not filing affidavits with the Board.</p>
<p>What they were charged with was a separate and distinct offense which was conspiring to defraud by filing false statements with the Government upon which governmental action was taken.</p>
<p>Their constitutional claim, if it were sound, meant really nothing more that they were entitled to challenge Section 9 (h) by ignoring the statute, by not filing any affidavits, but it did not mean that they could lawfully commit an entirely separate and distinct offense.</p>
<p>Assume for example, hypothetically, that petitioners on this record had decided instead of that -- instead of filing false affidavits, they would prevent the impact of Section 9 (h) upon their union by bribing the official of the National Labor Relations Board who was in charged of the records of the Board with regard to such affidavits, and bribing him to have him alter the records in order to reflect that they had filed the affidavits.</p>
<p>It seems entirely clear to us that it would not be a defense to bribery prosecution in such circumstances for them to say “Oh we didn't have to file any affidavits at all.”</p>
<p>Their lawful response to the -- to the requirement that they file affidavits if they had a constitutional challenge to that requirement, was not to file the affidavits and to do what the plaintiffs did in American Communication Association versus Doud, which is the case in which this Court did pass in a proper procedural context on the constitution -- very same constitutional challenge make here by petitioners.</p>
<p>In other words --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: How did the issue arise in the Doud, did they refuse to file anything (Voice Overlap) --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: The union and the officers used to file affidavit -- and then when the National Labor Relations Board failed to place the union's name in a representation election, they've brought suit --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Against the Board.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: -- against the Board to require the Board to make the appropriate measures, taking appropriate steps.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Suppose this affidavit -- suppose this law had required that the prerequisite getting attention by the Union, by the Board?</p>
<p>The Union swears that it has nobody in it, they believed in the Christian religion and they must state that they do not believe in the Christian religion.</p>
<p>Are you saying that under those circumstances if they filed a false statement they could be convicted?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We think Mr. Justice Black, yes.</p>
<p>That the proper response in a -- in our legal system is to challenge the obligation, not by committing another offense, a distinct offense which is filing a false statement or committing fraud but by not answering at all.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Now let's assume that I don't know which position you are taking for the Government, let's assume that such a requirement would be void under the First Amendment.</p>
<p>Is it your position that even then they could be tried for perjury if they are tried for what you're trying them here for confers to the committed perjury, if they had sworn falsely of that legit leave?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We think --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Assuming now that it is void, the law is void.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes.</p>
<p>Well, we think yes.</p>
<p>We think that -- just as they could be tried, just as people in this position could be tried for any other crime.</p>
<p>I think really an answer with (Voice Overlap) response to your particular crime (Voice Overlap) --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Not -- which will be charged there -- would be given the government the wrong information with reference to their religious beliefs and we're assuming now that the government doesn't have the right to make any such inquiry.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: That --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: The answer would be the same.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, Mr. Justice Black, it seems to me their response to the unlawful inquiry would be not to answer and then, if it --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But if they did answer through here and then you could try them for perjury even though it was inquired -- requiring them to do something which the constitution forbade.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, I think Mr. Justice Black, it might will be a defense if you say if they -- will require to answer through fear or through some form of coercion but if they have --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I am talking about the coercion of the law.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Nothing but the law.</p>
<p>I'm not saying if the Government could have [Inaudible] they just passed the law until you've got to do it or as you go to jail.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We think their obligation is just not to answer, not -- and they may not answer falsely --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: And do -- do you have to make them draw and guess about that, those answers and then they can be tried even though they couldn't be tried for not answering it at all, because it --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes, Mr. Justice Black because we think that they've committed a separate offense, we think that that --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I -- I was just trying to find that if that was your first argument.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, that is our argument.</p>
<p>General Taylor has said that our contention is in line with your question Mr. Justice Black that if it -- if a government inquiry is authorized by statute, although it may be claimed to be unconstitutional, then if a person who's asked that question, he can be put to the choice of either answering it or challenging it by not answering it, but may not answer falsely.</p>
<p>Now we think that's -- that's precisely right, he may not answer falsely.</p>
<p>He may not -- he may not shoot the interrogator.</p>
<p>He may not bribe the interrogator and we think he may also not answer falsely.</p>
<p>Each one of those is a separate offense which --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Of course if he didn't answer, I'd assume he could be tried or commit a -- convicted of a crime, isn't it?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Under this statute Mr. Justice Black, there is no --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Not in this particular one but it would mean the same thing if it was a crime.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Oh, that they didn't answer but then he would have the constitutional claim then he could assert his constitutional claim and we think under our system, that's what a -- that's what somebody who was subject to an unconstitutional request must do.</p>
<p>He must challenge it by not answering or by taking whatever steps, whatever lawful steps, the minimum steps in terms if not committing other offenses that are available to it.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well I gather this will not go through as far that there is any finding with these records to actually date [Inaudible] Let's assume that someone have been filed and executing these files for [Inaudible] I gather your argument goes far down to each place, in that place that I made, it's going to constitute, but nevertheless that -- part of me that, the prosecution under this indictment should not have brought from 1956 was not.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I think Mr. Justice Brennan, it would have been possible -- it would not have been -- it wouldn't have been void, I don't think I --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Wide as the matter to get it done.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes, I think it would have been constitutionally permissible.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Your argument is not withstanding before the [Inaudible] nevertheless I think the affidavit -- they're prosecuted before the days of [Inaudible].</p>
<p>This prosecution would then began to --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes sir because it was a false statement and because the petitioners could have raised their constitutional claim by simply not filing any statement and it did give them, the fact that the statute might be unconstitutional did not give them a light --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I think [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Those arguments had been [Inaudible] results.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Now that the [Inaudible] requirement that these statutes or these statements to [Inaudible] statements here.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: That the [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: As a -- under the --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: As conspiracy-to-defraud statute.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, under the conspiracy-to-defraud statute which is what this prosecution was brought under, I think the statement would have to be material because fraud would have been -- would be required.</p>
<p>And that means that the false statement would have to be material to something which the filers are attempting to obtain.</p>
<p>Under 1001 on the -- well, I'm sorry I think I would have to insert on 1001.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Was this under 1001?</p>
<p>Was it a conspiracy to violate 1001?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: It was not?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No.</p>
<p>This is the conspiracy to violate --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: That's the point of --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: That's right.</p>
<p>We think the -- our argument in this regard is really -- makes this case very similar for example to this Court's decision in United States versus Williams, which involved a -- the question, the validity of a perjury charge, made against a witness who had testified allegedly falsely in a criminal trial on an indictment which did not as this Court held state of federal offense.</p>
<p>Now presumably the Court in that case, in the Williams case, did not have in one sense jurisdiction.</p>
<p>They couldn't proceed to try that case and yet, witnesses who appeared before it, if they were to make that kind of a challenge, certainly couldn't even contest the Court's jurisdiction before they were able to testify.</p>
<p>And yet this Court held in Williams that that did not give them the option of committing the entirely distinct and separate crime of perjury.</p>
<p>The Kapp and Kay cases are not as General Taylor suggested, separate branches of our argument, they were all -- we believe they were all welded in, they're part of the very same proposition.</p>
<p>In Kapp, the defendants had been charged with conspiring to defraud the United States by submitting false claims under the Agriculture Adjustment Act.</p>
<p>Presumably, those claims were nullity.</p>
<p>The Agriculture Adjustment Act had been declared unconstitutional by the time the case -- that the validity of that indictment was determined by the District Court.</p>
<p>And yet this Court held that despite the fact that the Agriculture Adjustment Act was unconstitutional, that did not give the defendants in that case a license to commit a separate and distinct crime.</p>
<p>Essentially, at the heart of our argument is the very same proposition we think -- or the very same broad principle which is -- which underlies this Court's decision in the United Mine Workers case, which is that there are certain lawful responses which may be made to demands or requests of courts or governmental agencies which may be impermissible, whether because of lack of jurisdiction or whether because of a constitutional challenge, and the permissible responses are not to be the -- either not to respond to the demand or to take whatever minimum steps are necessary in order to present the constitutional claim in appropriate litigation.</p>
<p>But a constitutional challenge does not, under our system, give the person who is subject to the allegedly unconstitutional demand, the option of committing a whole range of -- a broad range of crimes, simply in order to avoid the impact of what he claims is an unconstitutional request or demand and that we think is what is in issue here.</p>
<p>If the Government -- if the Labor Board under Section 9 (h) did not have the power to demand these affidavits, petitioners' option was not to submit affidavits.</p>
<p>They could not bribe the Labor Board employee nor could they submit false affidavits.</p>
<p>A court which has no jurisdiction may not under the United Mine Workers case, cavalierly disobey.</p>
<p>An agency which has cons -- no constitutional power, may not under this Court's decision in Kapp be cheated.</p>
<p>A court which is trying to charge which did not amount to a federal crime may not under Williams be lied to and there are many cases which we've cited in our brief or considerable number of case that we've cited in our brief, which involved grand jury's calling witnesses without informing them of their privilege against self-incrimination and then putting questions to them.</p>
<p>In one sense, the questions certainly in those cases are unauthorized.</p>
<p>The witness, who is ignorant of his privilege against self-incrimination, presumably doesn't have the option of refusing to answer.</p>
<p>He doesn't know what it is he can do and what his lawful rights are.</p>
<p>And yet, courts have held that a false answer under those circumstances amounts to perjury.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Have they held that in reference to questions involving First Amendment for you?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I don't know of any case.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Do you conceive that there's any difference in that kind of case?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, I think it might be different in First Amendment case if possibly Mr. Justice Black.</p>
<p>In other words, possibly the mere obligation of answering of any kind if a witness is ignorant, certainly if he's ignorant of his various options, he ought not in any way to be penalized for what it is that he's answering.</p>
<p>But I think in this case, even if it involved First Amendment rights, the petitioners had the advice of counsel, they knew what it is that their choices were and indeed, I don't think that there's probably no doubt that they consciously chose to file affidavits rather than not file them and make a constitutional challenge in an appropriate proceeding because they knew that it -- they may be appropriate challenge, it would then -- have been rejected under the Douds case.</p>
<p>So that they -- they made in this case a very knowing choice when they determined that they would file false affidavits rather than not filing the affidavits at all.</p>
<p>I think it's possible that in certain First Amendment context if a -- if they -- a person who has asked the question does not have the advice of counsel and does not know what his options are it might very well be unfair or possibly constitutionally impermissible then to prosecute him because the answer turns out to be false, but I don't think that's this case.</p>
<p>On the merits of the constitutional claim, I would like to make these two points, after noting.</p>
<p>First of course, that the ground that the majority of the Court or in Douds determine that Section 9 (h) was constitutional or was not a bill of attainder, was of course pro tanto overruled in Archie Brown.</p>
<p>In Douds, the Court adverted to the fact that 9 (h) was not a bill of attainder because it operated only prospectively and to that extent, this Court has overruled that portion under Douds holding in the Archie Brown case.</p>
<p>However, I do think it is important to note that in the bill of attainder cases and particularly in the Lovett case, there was heavy emphasis placed by the Court on the question of whether what Congress was doing amounted to punishment and it was held in Lovett that notwithstanding the fact that the sanction was not a criminal one it nonetheless did amount to punishment.</p>
<p>In this case, in 9 (h) we believe that the Court in Douds held that it was the effect of the affidavit requirement was a discouragement and that's the Court's language and we submit that to that extent, 9 (h) is distinguishable from the successor statute in Section 504 of the Landrum-Griffin Act because it is merely a discouragement and this Court in a footnote in the Aptheker case, made that very distinction between Douds and the statute that was before them in Aptheker.</p>
<p>And we think that that would be a ground for distinguishing 9 (h) from the Archie Brown statute in bill of attainder terms.</p>
<p>With regard to General Taylor's reference to this Court's recent decision in Elfbrandt, of course this indictment did not allege specific intent because what petitioners were being charged with was not mere membership in a Communist Party or anything that would have required a showing of specific intent.</p>
<p>They were charged with having lied in the statements of the Government.</p>
<p>They said to the Government that they had -- they were not members of the Communist Party.</p>
<p>The only material question is whether they were members of the Communist Party and whether that statement if they were not was a lie.</p>
<p>Consequently specific intent in the indictment or in the proof was a -- would have been any relevance.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And a relevance to the [Inaudible]?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes, right.</p>
<p>We think it must be knowing because otherwise the statement isn't false, presumably somebody who doesn't know that he's a member of the Communist Party and he said that he's --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Is it the members [Inaudible] --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Right, Mr. Justice Brennan.</p>
<p>That's right.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Why would they charge in this case for the violation -- conspiracy to violate this Act?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: The real reason they weren't charged Mr. Chief Justice is, that there were some doubt -- apparently the time that the indictment was drafted whether an indictment charging them both with conspiracy-to-defraud and conspiracy to violate 1001 might not be duplicitous.</p>
<p>Now of course, there have been many cases in this Court and other courts that have held that it would not be duplicitous, but I think (Voice Overlap) access or cautions --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Or that they just take to a simple way of doing it and charge them with a conspiracy for violating this Act.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I'd like to turn to that next with regard to the --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Alright.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: -- if I may on the right to --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Whatever you wish?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Right.</p>
<p>I'm just trying --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: With regard to the petitioner's second contention which is precisely that they should have been charged with 18 U.S.C. 1001 rather than with a conspiracy-to-defraud.</p>
<p>We think the short answer is that the indictment on its face charges more than a conspiracy to violate 1001.</p>
<p>It charges a conspiracy to violate 1001, plus, further Acts committed in pursuance of a fraud on the United States.</p>
<p>And for that reason Mr. Chief Justice, we think that if the petitioner's crime were properly defined, it would really be -- they conspired to violate 1001 and they conspire it to defraud.</p>
<p>It was one conspiracy but its objectives were -- went beyond nearly filing false affidavits.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Mr. Lewin, can you violate 9 (h)?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Only in the sense that 9 (h) has the sanction of not providing Board itself (Voice Overlap) it's not if you don't violate.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But in no -- in no event could you have charged him with a conspiracy to violate 9 (h)?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I don't think so Mr. Justice White, because all that -- all that 9 (h) does is it tells the Board, you may not offer your facilities to such and such unions.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Unless something happened.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Unless something happened.</p>
<p>So I don't think anybody -- any individual can really violate 9 (h) in that sense.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Would perjury lie?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, if -- I think under the perjury statute, this would have to be before tribunal competent jurisdiction.</p>
<p>I'm not sure whether affidavits filed on those circumstances could be perjurious.</p>
<p>And I think -- in addition Mr. Justice Douglas that 9 (h) provide that the false statements, 18 U.S.C. 1001 will apply to these statements.</p>
<p>So even a perjury were available, I think that really would be no occasion ever to use a perjury charge.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Did the indictment here specifically refer to 1001?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: The indictment Mr. Justice Fortas, did not refer to that one.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Because as I see this -- the juror saying maybe that this contained -- the specs that the charge here is a conspiracy-to-defraud the United States of the services of the NLRB by falsely filing an -- by filing a false affidavit under 9 (h), and I don't see -- I'm not sure that I understand why you referred to 1001 in your last statements.</p>
<p>That is to say that is it or is it not the fact that the fraud that you're alleging -- you alleged in the indictment of United States was defraud under 9 (h).</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: And that the means of the overt act was the -- at least one of the over acts was the filing of this false affidavit.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes sir.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Now, the other question I want to ask you is this.</p>
<p>General Taylor referred to the question as to whether they can -- as to whether the constitutional issue is presented here in terms of the standing of the petitioners to raise that issue.</p>
<p>I take it that your position is that it's not the question of standing, it is the question of the irrelevancy.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: That's precisely our position.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: (Voice Overlap) of the constitutional issues, is that right?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: That's right, we're saying no matter how that's decided, it does not affect these convictions just as it would not affect the bribery conviction or result conviction on -- if it were -- if it that would be --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: So you're charging a conspiracy under 371 to the defraud the United States by means of filing false affidavit with purpose of obtaining the services of the National Labor Relations Board under 9 (h) --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes sir.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- isn't it?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: That's right.</p>
<p>We think that the phase of the indictment as a matter of fact, shows that what was involved here was much more than a conspiracy merely to violate 1001 or to file false affidavit.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Was that more than or less than, it was a different problem, you don't mention 1001 in the event that --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We don't mention 1001 but well -- it was - in the course, Mr. Justice Stewart, in the course of committing their greater conspiracy that conspirators we think violated -- could very well been charged with having violated 1001.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But they weren't charged with that.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: They were not charged with that, but the indictment, if I can just point to pages 2 and 3 of the indictment, it's entirely clear from the face of the indictment that there were three parts to the conspiracy.</p>
<p>Only the first part of the conspiracy as alleged was the filing of false affidavits.</p>
<p>The second part, and that's alleged in an entirely separate paragraph which appears on page 3, was that the cons -- the conspirators, the petitioners in this case and others, induced the Labor Board to issue certificates of compliance based on these false affidavits.</p>
<p>And the third paragraph is that the conspirators then may over a period of use of the Board's facilities knowing that the underlying affidavits had been false and fraudulent.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Was there any advantage to the Government of charging with the -- under the fraud section and under this -- this has a violation of 1001?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I can think of the -- I can think of none --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, you may not or you may not have been may or had some worries about charging the folks but you could have taken either one.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We could have taken either one --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: So why do you think --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: -- I think it's possible --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Why did you choose, what sounds like a more difficult course.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well I think it more accurately describes what the conspirators did really.</p>
<p>They didn't.</p>
<p>They -- had they -- had they've been violating 1001, then presumably and arguably --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well you have not -- you certainly agree to that part of what they did with the violation of 1001.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: That's right, but I think that can only --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: So you could have charged them with that and what about penalty wise, is that the same penalty --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Same penalty, I think arguably --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But there's no --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: -- they might have contend --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But there's no fraud connotation to this 1001.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Right, but they might then have contended and I don't think it would have been sound but they might have contended that their conspiracies were separate conspiracies then for each year.</p>
<p>They might have argued well you can't charge this with one overall conspiracy when each year we've been conspiring to file false statement.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Would you feel -- do you have to cut in to some prior cases in this Court to say that you've been -- that you can maintain this indictment and yet the fact is that it does charge a -- an actual facts amount to a violation of 1001?</p>
<p>And 1001 isn't -- doesn't necessarily require proof of fraud.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Right, but we don't think we have to cut into any -- any statement --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: You don't think any -- you think General Taylor is erroneous?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Oh no, because the Bridges case which is I think the only case --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: You don't think that that's into that at all?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, the Bridges case was as Mr. Justice Stewart pointed out a case in which the question was with the War-time Suspension of Limitations Act which extended a period of limitations for fraud against the United States would apply to a case in which a conspiracy-to-defraud was charged in which the whole conspiracy-to-defraud consisted only of the commission of substantive offenses, various substantive offenses which is making a false statement to a naturalization officer, obtaining a false naturalization certificate.</p>
<p>And that was all that could -- all that the conspiracy there charged involved.</p>
<p>It's distinguishable from this case in two respects.</p>
<p>First of all, the Court was entirely clear on Bridges that it was construing the War-time Suspension of Limitations Act which the Court there said was -- should be given very conservative construction, what amounts to a fraud on the United States for purposes of the War-time Suspension of Limitations Act, is not the very same thing as would be a fraud for purposes of the conspiracy to defraud statute.</p>
<p>Really, I think what the Court was concerned about in Bridges was the fact that almost any conspiracy-to-defraud encompasses lots of subs -- commission of substantive offenses.</p>
<p>An author of the law review article in -- which is cited in our brief has maintained that that -- all of the cases involving conspiracy-to-defraud which have been brought could be brought as conspiracy to commit substantive offenses case.</p>
<p>And yet in this case, we believe there was more to the conspiracy than merely the commission of the substantive offense of violating 1001, and that we think is the second distinction from Bridges.</p>
<p>In Bridges, the conspiracy-to-defraud encompassed and nothing more just the commission of various substantive offenses.</p>
<p>In this case, the second and third parts of conspiracy alleged in the indictment didn't involve any substantive offense at all.</p>
<p>There is no substantive offense that says that you're committing an offense against the United States if you induce the Labor Board to issue to you a certificate of compliance based on somebody else's or on your own, false non-Communist affidavit.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Would you say -- that would charge the violation of 1001 in any event?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We say that the facts alleged in the indictment amount to a violation of 1001 and more, yes.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And what's this -- what's your answer to these arguments about prejudice?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, our first answer of course is that if we could properly charge it then, even if they weren't prejudiced that there was -- its lawful prejudice.</p>
<p>I mean, we think that this is really what -- this really amounted to a conspiracy-to-defraud not merely to conspiracy to violate 1001 and our second response is, that the prejudice exists in any case in which a defendant is charged with a greater offense and convicted of a lesser.</p>
<p>Now --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: What if you're wrong -- what if you are wrong in your argument is there -- and what if it sound that the Government to this indictment, they only thing this indictment can be held with charges with the conspiracy to violate 1001?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Then we think that the error was not prejudicial and that that -- because, the petitioners and the defendants in this case knew exactly from the fact spelled out very carefully indict -- in the indictment, what they were being charged with.</p>
<p>And at most, what they were charged with was violating 1001 and going on and doing other things.</p>
<p>If they were convicted only of violating 1001, then they are prejudiced is no greater than being convicted of a lesser included offense in -- when they're charged with a greater.</p>
<p>The judge --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: General Taylor said there might be a statute of limitations question.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I haven't seen the statute of limitations question in petitioner's brief really and I really don't know exactly what it would be.</p>
<p>It appears -- it appears to us really then Mr. Justice Harlan that a conspiracy going lasting into a limitations period of this sort, whether it's a conspiracy-to-defraud or a conspiracy to violate 1001 --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Is the same?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: -- would involve the same proof, and that we just don't see that there's any difference in terms of limitations between each other.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What is the exact fraud of things in crimes?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: The fraud in this case Mr. Justice Black --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Fraud.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: -- the fraud was inducing the Labor Board to issue on the basis of false affidavits, a certificate of compliance and then using services of the Labor Board which under the statute, if -- let's assume constitutional, the petitioner union was not entitled to.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, what -- was that -- that this fraud occurred, is he just violated it?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well (Voice Overlap) not necessary --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: -- violated the Act in itself is due to fraud.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Not necessarily Mr. -- it's possible it seems to us to file false statements under 1001 and then go no farther.</p>
<p>Then never -- assuming -- if one union officer for example may file false statement --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, I think that the government was, wasn't it, to prevent itself from being defrauded with that false affidavits?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: That's true.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: And that's the case?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, because here, petitioners did more.</p>
<p>They didn't merely file a false affidavit.</p>
<p>They then went on and tried to use the false affidavits as a basis for obtaining -- as the a basis for obtaining benefits which they actively sought.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Mr. Lewin, how's the -- under this indictment, that file, they have approved that there are -- those two meetings I fact means that it is going to [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Is it possibly contention?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We think that we could still sustain a conviction for conspiracy to commit an offense.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Suppose they have to defraud this experience well that these questions --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Oh, right. Well, I'm assuming from Mr. Justice Brennan's question that we didn't prove that they had any such intent that they ever sought that they just intended to filed false affidavits --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Or it's the law [Inaudible] that they filed these affidavits under this. In fact that the contribution was [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes, but we think a different -- a harder question would have been presented which is whether it would end up in prejudicial error to allow the case to go to the jury under the indictment charge of a conspiracy-to-defraud when the proof amounted only to a conspiracy to violate 1001, which would have been a different and harder question.</p>
<p>We think the proof here when it went to the jury was enough to sustain conspiracy-to-defraud.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Because he has conspiracy to defraud the Government are you making again the false affidavits and all that -- use the Labor Board (Voice Overlap) --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: And then using --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: -- is that for all who stood here.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Now, then using the Labor Board Mr. Justice Black.</p>
<p>Its like -- if I were to conspire with somebody else --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Could you conspire -- could you convict him for using the Labor Board just --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, that -- that's not a separate offense, but that's exactly what the conspiracy-to-defraud.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That's not what -- what if he called filing up one offense to one another and then on another and then on another, isn't it?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Except that in this case Mr. Justice Black, we only -- there's a one count indictment and there's only a single conspiracy.</p>
<p>We weren't seeking the accumulate sentences like --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Why is there trouble that you are afraid you couldn't convict them in this statute because it's unconstitutional and you end this other to -- to get around.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No Mr. Justice Black, because at that -- at the time this suit was brought the statute 9 (h) was constitutional and it had been held so and -- by this Court in Douds and I don't think there was -- there -- at that time merely been any thought that that Douds would be overruled.</p>
<p>And the -- that the only reason that this case was brought under the conspiracy -- under the conspiracy-to-defraud provision, we submit was that really what the petitioners did in this case was much closer (Voice Overlap) --</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: What made you -- made you evidentiary problem as much more flexible obviously, isn't it?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Not been a conspiracy to violate 1001 I think.</p>
<p>I mean if -- more or so than nearly violations of 1001, yes sir.</p>
<p>Although, even as to that there are cases -- I think we should tell that if you -- if you prove the conspiracy you can put in the same evidence even if you haven't alleged -- and so -- but it seems to us that the situation here is similar to that which would result for example I and another were to attempt to the District of Columbia of fraudulent birth certificate for myself, for the purpose of obtaining government employment or a driver's license.</p>
<p>Now, when I obtained the fraudulent birth certificate, I've committed one offense, but if that's part of a much larger scheme which is to obtain a false certificate which will then be used and I then intend to use it actively then I committed a much more -- much broader and more encompassing conspiracy than merely obtaining the false certificate.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Do you think you get in the area of the trouble we've had by the old Black-Burger doctrine?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I don't think so Mr. Justice Black, because this is one conspiracy and one count and there was no attempt made in this case really either to pile up sentences or to accumulate punishments or in any way to fragmentize what would be a single -- a more of --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: It was like it's making it as an essential part of your crime, you couldn't convict him without proving a violation of 9 (h), could you?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We couldn't convict him without proving that is -- that a statement was false and that --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Yes, and that's what (Voice Overlap) --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: -- and it was required.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: -- prohibit this.</p>
<p>So what you're doing is taking a -- an essential -- making it as an essential part of your crime and just adding another word used dramatical words to it, that fraud and said, we construed it up, maybe we can't constitute him under this or do you admit that you can't do it practical, don't you?</p>
<p>Under the latest case, you certainly made it and you take an essential fact, something that you've got to prove and you can't convict him without it and if you'd known that that essential part is unconstitutional.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Haven't -- we've gone -- but we did -- if we did anything in this case Mr. Justice Black --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But can you convict without that part?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Without 9 (h).</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That's right.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, our position is that we -- that even if 9 (h) were unconstitutional we could convict, yes.</p>
<p>Yes sir.</p>
<p>That -- that's what I'm --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What I', talking was the -- if 9 (h) was not on the book, you still say you could convict?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, if 9 (h) were not on the books, of course then --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Would you say if it's on the book and unconstitutional, you can?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Until such time as the Labor Board does not have the authority to demand these affidavits, we think those who are subject to it --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well it doesn't have the right to demand if the Act is unconstitutional?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No sir.</p>
<p>Not as of that time.</p>
<p>The question is of course, what happens prior to the time if the Act is declared unconstitutional and it does so under color if you like of constitutional authority.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Is it what you [Inaudible] in this record?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes, they've -- well, there was testimony -- well from I think a total of ten witnesses, each identifying what these petitioners and witnesses --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, because I think they would all have gone to the question of whether they were members of the Communist Party.</p>
<p>The only additional -- really the additional evidence that we got in and if -- it cast an added burden on this Mr. Justice Brennan, because we were required to prove fraud.</p>
<p>And the only additional evidence that came in as a result to that was the use of that -- the use of the Labor Board.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Candidly, if I've been told that the reason was -- that there was doubt as to whether both 1001 and the conspiracy-to-defraud could be charged in the same indictment.</p>
<p>And it was because of the fear of -- that this would be the --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We could have taken --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I don't know.</p>
<p>I can only say it seems in retrospect it could have been an unwise choice but I --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Really unwise unnecessary (Voice Overlap) --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Unnecessary --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: You were there, weren't you?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, I was not there.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: How do you distinct [Laughter] -- how do you distinguish Bridges?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: We distinguish Bridges Mr. Chief Justice on two grounds.</p>
<p>One -- the first ground is that the Bridges case was concerned as the Court made entirely clear that with the construction of the War-time Suspension of Limitations Act.</p>
<p>It said this was a statute which had been opposed for a very limited number of cases. In other words -- and said it was -- it should be given conservative interpretation.</p>
<p>And the question was, whether Acts such as those alleged in the indictment in Bridges, amounting to a fraud within the meaning of that Suspension of Limitations Act and the Court held that they did not amount to a fraud within the meaning of that Act.</p>
<p>Now have the Court held as petitioners now contend that that could not even have amounted to a conspiracy-to-defraud at all, presumably the Court could have -- or petitioners in that case would have been moved to dismiss the indictment altogether as they did here.</p>
<p>The Court didn't dismiss the indictment in Bridges.</p>
<p>It didn't say it was -- it improperly charges an offense.</p>
<p>It said only that it did not come with the union Suspension of Limitations which that very limited statute provided.</p>
<p>And our second ground for distinguishing Bridges is that on fact, Bridges really did not involve anything more than a conspiracy to commit three substantive offenses and there was nothing more alleged in the conspiracy count then that the conspirators had, as part of their conspiracy committed each of those three substantive offenses.</p>
<p>In this case, the second and third portions of the conspiracy are not substantive offenses at all.</p>
<p>And for that reason, we think it's properly charged them as fraud on the United States and not merely a substantive offense.</p>
<p>In addition, we think that it's entirely clear not only from the first portion of the indictment but from the overt acts which are alleged.</p>
<p>That much more was charged in the indictment than a conspiracy to violate 1001.</p>
<p>Overt acts, 4, 7, 14 and 15, all deal with the use of National Labor Relations Board facilities.</p>
<p>Now, had we charged as petitioners now contend in the indictment, nothing more than a conspiracy to file false affidavits, it would be hard to see how the testimony or the agreement that the -- signatures of various conspirators to National Labor Relations Board documents would be overt acts in furtherance of that conspiracy.</p>
<p>So altogether, we submit, it's quite clear that the base of the indictment charged a conspiracy-to-defraud.</p>
<p>Now petitions also contend well that no conspiracy-to-defraud could have been committed here because the National Labor Relations Board does not have the power to look behind the truth of these affidavits and then to place the union in decompliance under this Court's decision in the Leedom and Mine, Mill case.</p>
<p>How we think that looks at the whole regulatory scheme from the wrong point of view.</p>
<p>The question isn't whether a -- the Labor Board after at false affidavits have been filed had the power to go back and determine whether they're true.</p>
<p>The question is that as of the time these affidavits are filed, as of the time the representation is made, would the Board be acting if the truth were told in those affidavits?</p>
<p>And the answer is entirely clear that the Board under 9 (h) would not have the power to act if the truth had been told in the affidavits.</p>
<p>If these petitioners had signed an affidavit which under the proof here would have been a truthful affidavits stating that they were members of the Communist Party, the Board could not have gone ahead and offered them the services and facility.</p>
<p>Consequently, it's the false statement at that juncture which set the governmental operation into action and did so falsely and fraudulently.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: May I ask you about the hypothetical case which seems to me it might get what you are arguing, I may be wrong.</p>
<p>Suppose the Government would it make it a crime, murder -- to murder a government employee and that was held unconstitutional on the ground that they have the right to the statement.</p>
<p>The Government then has the statute that said if you defraud it of the services of its employees and be convicted of a crime, punishable just like murder.</p>
<p>Suppose that -- they did exactly this man on the ground that if he'd done this to defraud the Government and defrauded the Government or the use of its own employees, could he be prosecuted then?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, I (Voice Overlap) --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: They -- you've had defraud.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes, you'd have defraud but (Voice Overlap) --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: -- the Government if [Inaudible] services and you could allege that that's what he did of course.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: The case that helps you most is the one we haven't cited and that's the Chico Bridge cases uses opinion in 308.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, we like to use that.</p>
<p>I haven't seen that Mr. Justice Douglas and I'd -- we'll be glad to use it but it doesn't -- I -- Mr. Justice Black in response to your question, I'm not sure whether your statute -- the two statutes are interrelated.</p>
<p>In other words, I -- supposing that the fraud, the frauding of somebody of the services --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: No, but he did it to defraud the Government of his services, they charge it and made it a crime.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Yes.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: And you split it up in crimes like that.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, I --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What would you say about [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well if the man had been tried and I think (Voice Overlap) well, right.</p>
<p>If he had been tried then I don't think he could be tried up for the very same facts second time under that new statute.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Do you think that this man had been acquitted of a -- of this charge, 9 (h) that you could try to defraud in the Government then?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: No, but Mr. Justice Black, 9 (h) doesn't -- 9 (h) of itself has no sanctions (Voice Overlap) in that criminal statute.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: (Voice Overlap) crime.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Right.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Should have been made a crime.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well 9 (h) has no criminal sanctions, it's not a statute which prohibits anybody from doing it.</p>
<p>I would think that the -- our contention is that irrespective of whether 9 (h) itself was constitutional, it was at that time a fraud against the Government.</p>
<p>That's why our documents and to do what petitioners in this case did.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: To defraud?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Our -- the final claim that petitioners make is that the witnesses grand jury testimony should have been examined in camera or produced for defense inspection.</p>
<p>Now, we submit that an analysis here must begin with what this Court said in the Procter and Gamble case which is that we start with a wrong established policy that maintains the secrecy of grand jury proceedings in the federal courts.</p>
<p>Now grand jury minutes are in the first instance intended to be secret and we think that rule succeeds.</p>
<p>The plaintiff provides for that and it was not in any way affected by -- in that respect by the recent amendment for federal rules which this Court approved then obviously, grand jury minutes are not in a class with Jencks' statements, statements subject to 18 U.S.C. 3500 or the Jencks Act.</p>
<p>A critical point, a critical distinction it seems to us between the Jencks statements, statements which the Government may have of government witnesses made to agents to the Government and grand jury minutes is that Jencks statements could presumably be handed over by the Government to the defense at the Government's choice.</p>
<p>There's no policy -- no traditional policy of secrecy regarding that but there is a governmental policy which presumably can be waived by the Government.</p>
<p>But the Government has no option to hand over grand jury minutes whenever it chooses.</p>
<p>Rule 6 (c) specifically provides that attorneys for the Government may disclose grand jury minutes only when so directed by the Court preliminary to or in connection with the judicial proceeding.</p>
<p>That means --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Well, the question there is not whether the lawyers committed the error but whether the Court committed the error --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Right, but its --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: -- and the Courts got the power.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Right, but it seems to us --</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: (Voice Overlap) agree, you agree to that.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Definitely, Mr. Justice Fortas.</p>
<p>But it seems to us that what that does -- what -- the rule that the Court has to direct the threads minimal of grand jury minutes means is that it should only be in the rare instance that a Court directs that they'd be handed over without any sort of inspection at all.</p>
<p>Petitioners here contend in reliance somewhat on Pittsburgh Plate Glass case that they should have been entitled to direct disclosure to them of grand juries.</p>
<p>Now this is not the kind of situation we submit in which court should be ordering or a prosecution counsel can just be handing over minutes.</p>
<p>The Court should itself examine minutes to determine whether any judicial policy and secrecy apart from the Government's interest with any judicial policy of secrecy maybe is in anyway being overridden or injured by the disclosure to the defense.</p>
<p>Now, the reason we submit why the judge was not to be required in every instance to examine grand jury minutes in camera is simply -- now what this would result then is substantial delay and very heavy burdens on trial judges.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: How does that worked up in the Second Circuit where as I understand it that is pretty generally done?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Oh I've been told Mr. Justice Stewart that what -- the way it's worked out on the Second Circuit that there's almost automatic disclosure of grand jury minutes.</p>
<p>What happens is that -- it's like a Jencks' statement.</p>
<p>The defendant says “I want the grand jury minutes.”</p>
<p>The judges say, “Well, hand them over” and we think that that really isn't what Rule 6 (c) is intended to do.</p>
<p>The judge should be looking at the minutes but we think that that -- that's the necessary result of a rule that says you've got to look at the minutes all the time because judges feel substantially burdened by the task of taking on the grand jury minutes (Voice Overlap) --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: -- they think that maybe the defense probably knows better how to use the [Inaudible]</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, we think that -- that may be very well be true too.</p>
<p>But --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Yes, I think it's very true.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, in this case (Voice Overlap) --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: No, only in this case, in any case where judges just say “Oh, you take it.</p>
<p>I don't know how you use it.”</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well I --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: That's what happens under 3500.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: It is.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: It's a practical matter.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well unless the -- mass government counsel says that there's something that the Government (Voice Overlap) --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: How often the government counsel say anything anywhere, we don't see any cases or they seem to say that.</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Well, I guess it's not often but occasionally.</p>
<p>But --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Has there been any harm being done in the Second Circuit?</p>
<p>Do you know of?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: I don't know whether there is any noticeable on -- no, --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I mean as the (Voice Overlap) as the practice?</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: Pardon?</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: The nobles have put to try to change the practice or others --</p>
<!-- Nathan_Lewin--><p><b>Mr. Nathan Lewin</b>: None that I heard of (Voice Overlap).</p>
<p>All that we argued really is that in order to justify even an in camera inspection, the imposition that this puts on the trial judge, the defendants should be required to say something and point to some particular matter in the witnesses' testimony or some -- some specific item which he things would justify an in camera inspection.</p>
<p>Now on this case, petitioners have managed to do so very successfully in this Court, but if the trial transcript is examined, they didn't make nearly the same showing in the trial court as they've done here in the various illustrations in their brief and those showings could have been made in the trial court.</p>
<p>Generally, the statements made in the trial court were that -- all that the witnesses' testimony knows with declarations that it -- the specific wording of the declarations might be important and a general allegation of inconsistency with prior testimony.</p>
<p>But in this case or in this Court, petitioners have pointed to specific alleged inconsistencies between public testimony of the witnesses which they did not do in the District Court.</p>
<p>And we think that the transcript reflects and quite clearly that the Court was willing if there had been or any real attempt made to have them examine this transcript to really look at the transcripts but no real attempt was made.</p>
<p>And in any event, we submit that no harm could possibly be done to petitioners if the case were now remanded after the District Judge look at those minutes to certify whether there were inconsistencies which would have justified any motive of the defense.</p>
<p>General Taylor has pointed to the fact that one of the witnesses, Mr. Mason died between the first and second trial.</p>
<p>Well all what that means is that the District Judge agreed to grand jury transcript and compares it with the testimony of the first trial determines whether there were any inconsistencies.</p>
<p>Certainly if you find that there were no inconsistencies that doesn't vitiate this conviction.</p>
<p>If you were to find that were no inconsistencies then the petitioners were not entitled for the grand jury transcript at neither at the first trial nor the second trial and the convictions could stand.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: General Taylor.</p>
<p>Rebuttal of Telford Taylor</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: I would like to deal with a few of the questions that the Court put during the Government's argument.</p>
<p>Firstly, with the questions that had to do with the statutory point and then on the question of our situation with respect to constitutional contention.</p>
<p>And may I begin with the questions that the Chief Justice and Mr. Justice White, I think especially, were putting with regard to why this indictment was brought under the fraud clause rather than under the offense clause.</p>
<p>We deal with that in our brief at page 19 and the explanation as I think reasonably clear and the sequence not without interest.</p>
<p>I mentioned in reply to Mr. Justice Stewart's question that there was one other conspiracy case like this one.</p>
<p>That Mr. Justice Stewart was brought under the offense clause of the conspiracy statute.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That conspires -- that conspiracy to violate 1001, is that it?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes and the sequence is that this indictment in our case came in November of 1956.</p>
<p>In December of 1956, this Court decided the Leedom case which held that the Labor Board didn't have any interest in the truth or falsity of these affidavits.</p>
<p>And the West indictment, that's the other conspiracy case was brought in January of 1957 and was brought under the offense clause of the conspiracy statute.</p>
<p>And it seems to us clear enough that the Leedom case underlying the doubts which we thought should have existed before with respect to the validity of an indictment under the fraud clause so the Government shifted to the other and safer clause.</p>
<p>Now, the first one was brought under the fraud clause, we believe does have to do with the statute of limitations.</p>
<p>Whether it would have been successful in that respect isn't that matter of course, but the Court did say in the Grainger case that the statute of limitations on conspiracy to commit an offense cannot be any longer than on the offense itself.</p>
<p>Well some of these affidavits go back to 1949 in the indictment and not until 1956.</p>
<p>So there obviously was a problem with respect to statute limitations which may account the initial indictment.</p>
<p>Now Mr. Justice Stewart I'd like to go on with the question that you've put with respect to this indictment.</p>
<p>Mr. Lewin said in reply to your question that this indictment is not brought under 1001.</p>
<p>Of course it doesn't refer to 1001, there's no doubt about that.</p>
<p>However, my dimension that this -- that Section 9 (h) does have in it a sanction and the sanction is 1001, it's incorporated by this explicit mention.</p>
<p>The last sentence in 9 (h) is, the provisions of Sections blank, blank, 1001, 1022 and 1023, shall be applicable in respect to such affidavits.</p>
<p>So that there is a built-in incorporation by explicit reference to 1001 and therefore there's not a slightest difficulty in indicting in the circumstances for -- under the offense clause as well as under the fraud clause.</p>
<p>Now, coming back to the Bridges case, the distinction which Mr. Lewin has suggested here that the Bridges case had to do with the Suspension Act and therefore is irrelevant to our present problem, I don't think would stand analysis.</p>
<p>Mr. Lewin says that if the Suspension Act haven't been involved there that the indictment would have stood.</p>
<p>Well, there are other cases.</p>
<p>The Hammerschmidt case decided in 1926 involved no problem with statute limitations, no Suspension Act, it was a case where the Government prosecuted for conspiracy-to-defraud by obstructing registrants from military service.</p>
<p>Dismissed as a failure to state any fraud element, no statute of limitations involved --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But there are that previous -- the case that decide (Voice Overlap)</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: -- case.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Haas, I think it is Haas?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Haas (Voice Overlap) yes.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: -- decided by Justice Wortendyke, referred to in the [Inaudible] case?</p>
<!-- Telford_Taylor--><p><b>Mr. Telford Taylor</b>: Yes.</p>
<p>But the [Inaudible] case I think shows -- it shows -- it seems to me clearly enough that regardless of the presence or absence of the statute of limitations problem, if the elements aren't made out, the indictment must fail.</p>
<p>And the Bridges case tells us that in determining whether fraud is made out, you don't look simply at what the indictment says.</p>
<p>You look at what is in it.</p>
<p>Now, Mr. Lewin has said there's a lot more in this indictment beside the violation of 10001.</p>
<p>And of course there are indeed a lot more paragraphs, but the only unlawful element involved here is the false affidavit nothing else in it has anything to do with an unlawful conspiracy.</p>
<p>Indeed, this again is just like the Bridges case.</p>
<p>In Bridges, the first count said that Bridges was charged with conspiring to defraud the United States by making a false answer and thereby getting a naturalization certificate.</p>
<p>These things about the use of the Board and all that, they are the normal fruits of false statement.</p>
<p>I don't suppose anybody makes some just as I put in our reply brief that followed it, but there would have been no conspiracy here, there's no unlawful element at all other than the false affidavit.</p>
<p>And that is an offense under 10001 and fraud is not an element of it and this Court had said so repeatedly.</p>
<p>And the Government I think saw the -- saw the point after the Leedom case and therefore switched to the other clause.</p>
<p>Now, with respect to our constitutional contentions and whether we can bring them to the attention of the Court.</p>
<p>Mr. Justice Fortas' remarked that this is not a question of standing but of relevance and so forth.</p>
<p>It seems to us that the Government's point it is – arguing the statutory point, says that 10001 is something quite different from 9 (h) and when their argument constitutional point says -- said that's one and the same thing.</p>
<p>There could be no indictment here.</p>
<p>There would be no compulsion to file an affidavit, no pressure to file an affidavit but for 9 (h).</p>
<p>No affidavit would have been filed but for 9 (h).</p>
<p>And therefore, it doesn't seem to me that there's any problem with irrelevance.</p>
<p>Now the Kapp and Kay cases do say that under the circumstances there, the defendants were not entitled to challenge the constitutionality of those statutes.</p>
<p>The circumstances though I suggest were quite different.</p>
<p>In the Kay case which deals with this problem most clearly, involving the Home Owners Loan Corporation, the defendant indicted was -- the charge was that she -- who had a second mortgage on property, had overstated the amount of that mortgage in an application to the Home Owners Loan Corporation.</p>
<p>The Court said that her challenge to the validity of the entire statute would not lie.</p>
<p>That since she had sought benefits under it, she was not entitled to raise the question of the constitutionality of the entire scheme of Home Owners Loan Act, but that she was entitled to challenge the constitutionality of the particular sections of that Act under which her showing to the Government had been made.</p>
<p>And indeed the case did explicitly pass on the constitutionality of Sections 8 (a) and 8 (e) of the Home Owners Loan Act which were the relevant and governing sections.</p>
<p>It was only the overall challenge to the statute which the Government -- which the Court would not hear.</p>
<p>This part of our argument is dealt with in some detail in our reply brief at pages 6 to 10, and may I just burden the Court by pointing out there is a misstatement on page 8 which renders that paragraph meaningless the word sanctions should be situations.</p>
<p>The Kapp and the Kay case involved situations where the defendants want to see the validity or benefit from the Government.</p>
<p>The Government's position does amount to a contention that when an unconstitutional, unauthorized inquiry is made, a person must either disclose or litigate, or at least risk litigation.</p>
<p>Now I quite agree with Mr. Lewin that the appropriate and best kind of conduct in that situation is indeed to disclose or to challenge.</p>
<p>But it seems to us that to hold people in general to those standards is utterly unrealistic and highly oppressive in this potentialities.</p>
<p>This again we've dealt with on page 10 of our reply brief.</p>
<p>If this is so, I don't see why all kinds of questions clearly put to people in some of these forms, service on juries, racial questions, questions of religion are the matters quite beyond authorize scrutiny and put everyone to the hazard of answering truthfully or litigate it.</p>
<p>It seems to us the consequences speak for themselves and the -- this Court shall [Inaudible].</p>
<p>Thank you Mr. Chief Justice.</p>
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Wed, 22 Aug 2012 16:56:06 +000080381 at http://www.oyez.orgAptheker v. Secretary Of State - Oral Argument, Part 1http://www.oyez.org/cases/1960-1969/1963/1963_461/argument-1
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<a href="/cases/1960-1969/1963/1963_461">Aptheker v. Secretary Of State</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of John J. Abt</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Number 461, Herbert Aptheker et al., Appellants, versus the Secretary of State.</p>
<p>Mr. Abt.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Thank you Mr. Chief Justice, may I please the Court.</p>
<p>This is an appeal from a final order of three judge court sitting in the District of Columbia denying appellants' motion for summary judgment granting the government's cross motion for summary judgment and dismissing the complaints.</p>
<p>The complaints sought judgments declaring Section 6 of the Subversive Activities Control Act unconstitutional enjoining the Secretary of State from continuing, in effect, his revocation of the appellants' passports and ordering him to reissue passports to them.</p>
<p>The single question that the case presents is whether Section 6 of Subversive Activities Control Act is unconstitutional on its face or as applied.</p>
<p>Section 6 (a) of the act provides that when a final order has been issued requiring an organization to register under Section 7 of the act as a communist-action or a communist-front organization, it shall be unlawful for any member of the organization, who has knowledge or notice of this order, to apply for use or attempt to use a passport.</p>
<p>Section 6 (b) provides that when a final order is in effect requiring an organization to register as a communist-action organization, Section 6(b) doesn't apply to fronts, a communist-action organization, it shall then be unlawful for any employee of the federal government to issue a passport to any person who he knows or has reason to believe is a member of the organization.</p>
<p>Violations of Section 6 are punishable by fine and imprisonment under Section 15.</p>
<p>Now there's no dispute about the facts.</p>
<p>In April of 1953, the Subversive Activities Control Board ordered the Communist Party of United States to register as a communist-action organization.</p>
<p>That order became final in October of 1961 after this Court denied a rehearing in Communist Party versus the SACB in which it had affirmed the board's order.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: May I ask you question, is there any statutory restriction, any statutory restriction (Inaudible)?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: The government claims that there is, Mr. Justice Harlan, we disagree.</p>
<p>There is a provision in the regulations adopted by the Secretary of State pursuant to the authority given in the presidential proclamation, which put into effect the section of the law, which makes travel abroad without a passport unlawful.</p>
<p>A provision of the regulation that the Secretary may, in his complete discretion when he thinks the national interest so requires, that he may authorize travel without a passport.</p>
<p>Now that authorization while it might relieve the traveler of criminal prosecution for leaving or reentering the country without a passport but by no means assure him of entry into a foreign country because at least out of the western hemisphere most countries require the traveler to have the passport.</p>
<p>And unless the foreign country waive this provision, the secretary's waiver wouldn't permit travel, in addition to which of course that would – the whole – this whole provision of the regulation is simply a matter of grace on the part of the Secretary, it's not a matter of right on the part of the applicant.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Insofar as the actual issuance of the passport goes, the Secretary apparently has no discretionary latitude at all.</p>
<p>In fact he can, under the terms of 15 (c), he is sentenced to five years in prison.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: He can get five years in jail for issuing a passport if he has any reason to believe that the applicant was a member of the Communist Party.</p>
<p>In January 1962, following of the denial of the rehearing in the Party case, the passport office notified the appellants that their passports have been revoked on the ground that use of them would violate Section 6.</p>
<p>The appellants sought and secured administrative review of this -- of these relocations pursuant to the Department of Regulations.</p>
<p>At the administrative hearings, the department offered evidence that each of the appellants was a member of the Communist Party and had notice of the final registration order by virtue of the fact that it had been published in the federal register.</p>
<p>The appellants offered no evidence at the administrative hearing.</p>
<p>The administrative proceedings culminated in a decision by the Secretary, in which he found that the appellants were members of the Communist Party with knowledge or notice of the existence of this final registration order, and hence that their use of passports would violate Section 6 and accordingly he confirmed his revocation, the revocation order.</p>
<p>Now, I may say that the secretary made no finding and, of course, Section 6 requires none as to the character of appellant's membership in the organization as to their knowledge and attempt their activity, any other factor beyond the bare fact of their membership.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: The Court below found Mr. Justice Harlan that Dr. Aptheker is the or was at the time the editor of political affairs, which is the theoretical journal of the Communist Party and that Ms. Flynn was the Chairman of the Communist Party.</p>
<p>It found that from evidence introduced at the hearing and in the administrative record, but the Secretary's finding was based solely on his finding of the bare fact of membership, and under the statute, the fact, if it is fact that the appellants are leading members of the Communist Party, plays a role in the issue, the question of their right to passport.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Is Mrs Flynn the individual victim?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Mrs. Flynn is the individual, under the Smith Act, in the case that you decided in the Second Circuit Mr. Justice Harlan.</p>
<p>But again, there was no such, no finding in the administrative record to that effect and under Section 6 it's utterly immaterial as to who she was other than the fact that she is a member of the Communist Party.</p>
<p>Now, it appears to me from the record in the proceedings in the three-judge court, that Dr. Aptheker is a professional historian, is the author of many books and studies in his field.</p>
<p>The revocation of his passport has prevented him from tendering gatherings of historians in Europe and Africa, denied him access which he desires to overseas his archives and depositories which he needs to -- for the purpose of pursuing his historical studies and has prevented him from accepting invitations to lecture on historical subject at universities abroad.</p>
<p>Ms. Flynn has for many years written a column for the newspaper, The Worker, she is the author of several books and a speaker, and a lecturer, and she desires to travel to Europe as she has done in the past both for rest and recreation and to gather material for writing and speaking in this country.</p>
<p>Now I shall say --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Both of these -- both of these appellants are native born citizens?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Both are native born citizens, yes.</p>
<p>I should say that appellants' passports would have expired by their terms while the case was pending below but as the government agrees, this fact doesn't moot the case obviously because their applications from new passports were not only have been futile but would, as Mr. Justice Stewart suggested, have subjected them to a criminal prosecution from the bare act of making the application.</p>
<p>Turning then first to the substantive due process question which this case presents.</p>
<p>As I noted existing United States law and the laws of most foreign states prevent citizens from travelling at least outside of the western hemisphere without passports.</p>
<p>The denial of the passport therefore is a prohibition of foreign travel.</p>
<p>As the Court held in Kent versus Dulles, foreign travel is a part of the liberty of the citizen which protected by due process.</p>
<p>Section 6 must therefore satisfy the due process requirement that a depravation of liberty may not be arbitrary and that it must bare some substantial and reasonable relation to a legitimate legislative objective.</p>
<p>Now, the object of Congress, the legislative objective and the enactment of Section 6, is stated in the Section 2 (8) of the act, which appears at Page 54 of our brief.</p>
<p>That object was to protect the national security by closing of a means of communication between American and foreign communists, that is to say by preventing their face-to-face contact at least in Europe, which form of communication Congress found, and I quote now from Section 2 (8) ‘is a prerequisite for the carrying on of activities to further the purposes of the Communist Movement.'</p>
<p>And elsewhere as the Court knows in Section 2, Congress found that these purposes of the Communist Movement are a threat to the national security.</p>
<p>Thus, Section 6 was enacted by Congress as a security measure.</p>
<p>The government defends it here as a security measure and it must be adjudged therefore, and it must stand or fall as a security measure.</p>
<p>So judged, I submit, Section 6 must fall as an arbitrary depravation of a personal liberty which finds no justification in any genuine security need.</p>
<p>This is so in the first place because as I've already pointed out the depravation of Section 6 is based on nothing but the bare fact of membership in an organization which is found to be an action or a front organization.</p>
<p>Thus, the section bars travel by a member who has and who if you were given the opportunity could establish that he has a perfectly legitimate and even a vitally necessary reason for travelling aboard.</p>
<p>Again, the section prohibits travel by members who have never engaged and who do not intend to engage and who could have established that fact if they were given an opportunity to do so an unlawful activity of any kind, either this in country or abroad, and for whom to use Mr. Justice Harlan's phrase in the Scales case, the organization is a vehicle for legitimate political activity.</p>
<p>Similarly, it's completely irrelevant under Section 6 that the member does not know or believe that the organization engages in any illegitimate activity of any kind or that it has any of the sinister characteristic that the act and the board's order attributed to it.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Mr. Abt is it open to your appellants to assert the claims on behalf of these hypothetical people?</p>
<p>Your appellants, not having introduced any such evidence as to their lack of belief or their -- to put them in the position of people who have a reason to travel to Europe to see a sick wife or so on.</p>
<p>Those are hypothetical people who are not before us, do they?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: They are not hypothetical people, they are the real people that are before this Court Mr. Justice Stewart, these appellants because they had no opportunity to make such a showing and if they had offered such a showing it would have been held irrelevant and it is completely irrelevant under the statute.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: They declined to offer any evidence at all, didn't they, at the administrative hearing?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Yes, but the only issue before the -- the only issue at the administrative hearing was whether or not they were member of the Communist Party.</p>
<p>They had no opportunity and the statute afforded them no opportunity to show that they were people of the category I've just described, and indeed their affidavits in the three-judge court which are un-contradicted and must be accepted here as fact state that their purpose in travelling was not only perfectly legitimate, but as Mr. Forer will point out, it was for protective purposes, that's the same purposes protected by the First Amendment.</p>
<p>And that's -- so that we're not talking about hypothetical people, we're talking about the two appellants who are here.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well you are referring to people who could have established by evidence that they had no knowledge at all as to the purposes of the Communist Party, they still lack --</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: As to any illegitimate purposes of the Communist Party.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Right, and that certainly does not cover these appellants.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: I think it may well cover these appellants.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: You don't know.</p>
<p>They didn't offer any evidence, you don't know what they might have been permitted to offer.</p>
<p>They didn't offer anything.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well under the statute -- I don't know what the Secretary or the Hearing Officer might said, well go ahead and offer it, you may offer this evidence.</p>
<p>But under the statute none of that evidence was available for consideration by the Secretary.</p>
<p>The Secretary had found that these were very, very nice people who had never committed an unlawful act in their lives, had no knowledge of any unlawful activity by the Communist Party, and intended to go abroad for the best of purposes, and -- but yet found they were members of the Communist Party and he'd issue the passport to them, as you pointed out Mr. Justice Stewart, you can face five years in jail for that.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Under the literally terms of the statute.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Correct.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But I'm not only pointing out that you don't have that particular kind of case here, because there was no such evidence properly.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: But the question is who has the burden?</p>
<p>Who under a constitutional statute would have the burden?</p>
<p>And beyond that is the question that the act is written makes such evidence completely irrelevant.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: But that Mr. Justice Goldberg, that kind of membership was a different question, that was a meaningful membership in Rowoldt was not a question of membership with knowledge of the character, with the alleged illicit character, of the organization.</p>
<p>It was something more than the bare fact of having joined the organization, that was all was an issue there.</p>
<p>Now we're not -- we don't for moment say this is a Rowoldt case.</p>
<p>And --</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well I did make in a record in the District Court.</p>
<p>But let me say to clarify the matter, we're not from -- and if that was what you meant by your question Mr. Justice Stewart, then I misunderstood it, misinterpreted it.</p>
<p>We're not for a moment calming that this is a Rowoldt case.</p>
<p>But we are saying that the statute is invalid because it doesn't require anything, any showing by the Secretary except the bare fact of membership.</p>
<p>And in this respect the section differs very radically from security measures like, for example, the Federal Employees Security Program, which makes membership at an organization that has been officially found to be or listed as subversive, simply one piece of evidence to be considered in determining a person's -- or evaluating a person's loyalty.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: Are you saying (Inaudible)?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No sir I would not.</p>
<p>I would say that -- I would say that the statue would be a valid statute and that's going to be the burden of my part of the argument.</p>
<p>If it said that -- or let me restate that, I'm making too much of a concession.</p>
<p>I would say that my -- the point I'm now making would wash out, if the statute said, that the fact a person was a functionary or a garden verity of member is one fact that the Secretary of State should take into consideration in determining whether his travel abroad was inimical to the national security.</p>
<p>Then the statue would be equated with the ordinary loyalty or security of programs such as the Employees Security Program.</p>
<p>And the Department of Justice itself in 1950 when the act was under consideration in Congress, pointed out the vital distinction between those two approaches, that is to say the approach that makes members -- the bare fact of membership conclusive evidence of disloyalty, and which -- and the approach which makes that fact of membership simply one factor to be considered.</p>
<p>The department in this -- in the letter that it sent to the House Committee that was considering the legislation that eventuated in the act, opposed a provision that's now incorporated in Section 5 of the act, which parallels the passport provision in terms of defense and federal employment.</p>
<p>The letters is quoted in our -- page 23 of our brief.</p>
<p>That provision made it unlawful or makes it unlawful for a member of the Communist Party to hold federal employment or employment at any defense facility.</p>
<p>And the department in its letter pointed out that there is a world of difference between a statute of that kind and one which, in the words of the letter from the department to the House Committee, and I quote it, “enables a member to respond to charges against him.</p>
<p>And to show in a manner consistent with American concepts of justice and fairness that his membership is innocent and does not reflect upon his loyalty”, and that would go for a functionary as well as for an ordinary member Mr. Justice Goldberg.</p>
<p>Three decisions of the Court subsequent to the passage of the act confirmed the view that the department expressed in this letter and established that individual guilt or disqualification may not be conclusively presumed from the bare of fact of membership in the Communist Party.</p>
<p>First case to which I refer is the Scales case, which the Court upheld the membership clause of the Smith Act, but only by construing it to require not only membership in an organization that insights the violence, but knowledge by the accused of the -- the fact of the insightments, active membership by the accused, and a personal intent on the part of the accused to overthrow the Government of the United States.</p>
<p>Now Scales of course was a criminal case, but the Court has applied the same principle in at least two cases of statutes which impose civil disabilities.</p>
<p>The First was Adler versus The Board of Education, which involved a New York statute that made knowing membership in an organization found by the New York Board of Regents to advocate the violent overthrow of the government, prima facie evidence of disqualification to teach in the public schools.</p>
<p>Again, the Court sustained the statute, but only because it required two things.</p>
<p>First proof, not only is the organization had been listed by the Board of Regents, but that the teacher knew the character of the organization.</p>
<p>And second, because it required or accorded rather, the teacher a hearing, at which he could offer evidence to overcome the prima facie presumption of disqualification that flowed from his membership with knowledge of the character of the organization.</p>
<p>And in Wieman versus Updegraff, the Oklahoma -- the Court stuck down an Oklahoma statute which lacked these protective provisions.</p>
<p>A statute which made the bare fact of membership present or past disqualifying and the Court there stated that -- such a statute violated due process because of its indiscriminate classifications of knowing and with innocent activity, and Section 6 we submit is invalid for same reason.</p>
<p>The fact of the matter is that both the executive and Congress have recognized that this kind of indiscriminate classification of all of the members of the Communist Party as security risks isn't required for any legitimate security purpose.</p>
<p>I've already mentioned the letter from the Department of Justice which took this position and the State Department itself seems to have held the same view with reference to passports.</p>
<p>Because as the government's brief reviles, the department in 1948 adopted the practice of issuing or denying of passports to people that were found to be members of the Communist Party on an individual basis, depending on its appraisal of the qualification of the particular applicant.</p>
<p>Then after the passage of the Subversive Activities Control Act in 1950, the department inaugurated the practice of denying passports to all suspected communists indiscriminately.</p>
<p>But this change was not occasioned by any observed inadequacy of the previous practice for security purposes, it was adopted and this is clear from the record which we cite in our brief.</p>
<p>In deference to what was thought to be the policy of Congress is expressed in Section 6.</p>
<p>Then in 1958 when the Kent decision came down and invalidated the practice, which the State Department had adopted, the administration had bills introduced in Congress to give the Secretary the authority, which Kent held that he lacked.</p>
<p>The administration bill however didn't make membership in the Communist Party alone disqualify, didn't establish this kind of conclusive presumption of disqualification.</p>
<p>Instead that bill followed the pattern of the Federal Employee Security Program, as well as the 1948 practice of the Department of State itself.</p>
<p>And by making such membership, that is to say membership in the Communist Party or other prescribed organizations, only one factor to be considered in determining whether the issuances of a passport would be inimical to the national security.</p>
<p>Number of other bills introduced in Congress after the Kent decision took the same approach and two of the bills, which embodied this approach and one of which specifically said that no person should be denied a passport merely because of the fact of his membership in any organization, two of such bills were passed in the House in the 85th and 86th Congresses, the Senate never acted on the legislation.</p>
<p>Matter of fact even in 1957 report of the Commission on Government Security, which antedated the decision in Kent and on which the government relies very heavily in its brief as evidence of the necessity of a legislation even this report -- along the lines of the question that you asked Mr. Justice Harlan, even this report found that the inflexibility of Section 6 is, may well be and is a prejudicial to the national interest.</p>
<p>And accordingly this report, which again I emphasize antedated Kent, recommended an amendment to Section 6 that would give the Secretary discretionary authority to issue passports to communists.</p>
<p>Now it seems to me plain from this history that neither the Executive nor Congress believed that the conclusive presumption of Section 6, that is the conclusive presumption of disqualification which it establishes, isn't even necessary or desirable as a matter of policy.</p>
<p>And we think that the enactment of Section 6 doesn't indicate any considerate congressional judgment to the contrary.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Pardon.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well let me explain to you why I think it's on the books Mr. Justice Harlan.</p>
<p>It's on the books first of all because it was a product of what now appear I think to most of us who have been -- the exaggerated fears of our national security that were engendered by the outbreak of the Korean War.</p>
<p>And second it's likewise a product and the legislative history that we cite in our brief shows that of the prevailing misapprehension prior to the decision in Kent that the issuance or denial of a passport was a matter of grace with the government, something that the government could withhold, give or withhold with pleasure uninhibited by any constitutional limitations, and I think that those two considerations are what account for Section 6.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: This statute was not on the books at all, would the secretary have any power under existing other regulations and statutes to consider withholding and to withhold the passports from --</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Kent says not.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well Kent was not under then existing regulations --</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: There is nothing since -- no legislation since that time Mr. Justice.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: If your argument seems to suggest the words of this statute are, of course (Inaudible)</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well, if you want to get around -- that if the Congress wanted to get around the point that I am now making, all it has to do is to enact the bill that the Secretary of State send up to the Hill after the Kent decision, which made membership in the Communist Party simple one factor to be considered in a total evaluation of the applicant as a security risk.</p>
<p>And our brief -- if you want the language Mr. Justice Goldberg, it's in our brief and we quote the bills that were pending in the Congress.</p>
<p>The government's defense of Section 6 comes down to the proposition that it's a reasonable measure for the prevention of espionage.</p>
<p>But I submit that on the face of the matter, it's absurd to suppose that known members of the Communist Party, let alone party leaders against whom the government says that the act was particularly directed would be selected for some foreign espionage in its submission.</p>
<p>And there is no evidence that gives the slightest credence to any such supposition either in the very lengthy record before the board, the Subversive Activities Control Board in the registration proceeding or anywhere else.</p>
<p>Furthermore no genuine anti-espionage law would prevent suspects from travelling to Monte Carlo or to Rome by permitting them to make trips to Mexico City or Rio, nor can the prevention of face-to-face contact in Europe be seriously defended as a security measure while all other means of communication are left wide open.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: You are getting into a -- or you maybe approaching a different another area Mr. Justice Harlan, which is not involved in this case.</p>
<p>There might be considerations of foreign relations, which would -- which might justify that kind of a regulation.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: I know this was (Inaudible) --</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: But --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: -- yet by far under the security provisions.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: That's the only justification that Congress gave, that's the only justification that the government advances, and that's the only justification I can conceive of.</p>
<p>Nobody suggested that this legislation can be supported on any concept of necessity for not embarrassing our foreign relations in some fashion.</p>
<p>Finally, Section 6 would violate due process even I submit if it were reasonable to classify all members of the Communist Party a security risks ipso facto.</p>
<p>This is so because the right to travel is a part of a liberty of every citizen and a person may not be deprived of his liberty merely upon the suspicion, no matter how well founded that suspicion may be, that he will abuse it.</p>
<p>The practice of preventive detention, and that's what Section 6 is, has no place I submit in our constitutional system.</p>
<p>With us, the presumption of innocence is so fundamental that even persons convicted of crime may not be deprived of their liberty pending appeal as a means of preventing them from committing other crimes, but only to the extent necessary to secure their presence and their submission to the orders of the court.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible) including everybody involved in the security matters (Inaudible).</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: I am --</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: You are trying to (Inaudible)</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: I am saying that we should – we got to proceed in security matters Mr. Justice Goldberg just as we proceed elsewhere.</p>
<p>We can charge a man with the fact -- with crime after he -- the crime that has been committed, you can try him, you can put him in jail, punish him.</p>
<p>But you can't punish a man because you suspect that if you don't punish him he is going to commit a crime.</p>
<p>That's -- that Mr. Justice Goldberg to me is a throwback to the writs of ne exeat regnum that the British crown used to suppress defenders by confining -- sent by confining the defenders.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: At this stage, are you arguing that the (Inaudible)?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: That's correct, and I would argue that that bill is not invalid -- is invalid because it's a form of preventive detention.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Your hypothesis of the argument that you are now making is that the refusal to issue a passport to a would-be traveler aboard is punishment.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No I am not saying it is a punishment, but it's --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, what are you the?</p>
<p>You say you can't punish the man.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: It's a deprivation of liberty based not upon a past act which -- on past conduct, but a deprivation of liberty based on a suspicion of future misconduct, and as I say to me that is preventive detention.</p>
<p>That's what the British used, the British kings used when they issued writs of ne exeat regnum, and it's particularly obnoxious where the descent or the where the suspected activity is activity of a political nature.</p>
<p>Let me point out only in conclusion, concluding my portion of the argument, that no other western democracy confines its communists within its borders, and if to do so would be a suicide pact Mr. Justice Goldberg and France, England, Italy all of them have much larger and more powerful communists parties than we have -- have entered into the suicide pacts.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: Would that be very unwise (Inaudible)?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Yes Your Honor and I say that under the constitution Congress does not have the power to deprive a man of liberty because it thinks that if he is given his liberty he may abuse it.</p>
<p>He's got to abuse it first and then you can punish him for the abuse but you can't deprive him of liberty in anticipation of an abuse.</p>
<p>And I want to submit that the, that the government's fervor in defending what to me is the – an odious practice of preventive detention is a symptom of what Senator Fulbright recently called and I quote him, “a morbid preoccupation with the dangers of communist subversion and a flexion for which we Americans continue to pay so dearly in terms of our personal liberty and equally in terms of our national dignity.”</p>
<p>Mr. Forer will continue.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Forer.</p>
<p>Argument of Joseph Forer</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: Mr. Chief Justice may it please the court.</p>
<p>I will take up our contention that Section 6 on its face and as applied violates the First Amendment.</p>
<p>And first I would like take up and explain our position as to the various ways in which Section 6 interferes with speech and association.</p>
<p>And I think that this is desirable because of the position taken by the government in its brief.</p>
<p>The government argues that Section 6 is just a travel control statute, that all it controls is the conduct of travelling, and that any restrictions on speech and association are only incidental or byproducts.</p>
<p>The fact is however that Section 6 is and was meant to be both a direct and indirect restraint of First Amendment rights.</p>
<p>Now on the first place this appears from Section 2 (8) of the Act, which, as Mr. Abt pointed out, states the purpose of Section 6.</p>
<p>And that purpose, as Mr. Abt has already stated, is to prevent American communist from communication with foreign communist because it was felt that out of such communication something might happen to facilitate the coming of revolution in this country.</p>
<p>So the theory of Section 6 isn't that communist create a danger by the fact of their travel or by the mode of their travel, the way speeding automobile drivers do.</p>
<p>The theory of Section 6 is that the danger arose from what communist who travelled would do after they arrived at their destination.</p>
<p>And that danger was speaking to and associating with foreign communists, which of course is speech and association.</p>
<p>And in fact Section 6 does prevent American communist from meeting and speaking with foreign communist.</p>
<p>So, Section 6 is a direct and intended restraint on the speech and association of American communists and what is incidental is the section's effect on travel.</p>
<p>Now, of course Section 6 doesn't just restraint communist from talking to other communists, not everybody in Europe is a communist.</p>
<p>It therefore restraints American communist from talking to non-communist, and Section 6 also imposes like restraints on non-communists who happened to be members of organizations down by the Subversive Activities Control Board to be communist-front organizations or who are people who aren't members of anything, but who are people concerning whom the passport office has or thinks it has reason to believe that they are members of prescribed organization, but it further affects on First Amendment rights indeed, as illustrated by the situation here that the appellants want to go to Europe to study and to observe.</p>
<p>So, Section 6 is preventing them not only from exercising their First Amendment right to speak and to associate but also their First Amendment right to learn.</p>
<p>The situation is no different as far as appellants is concerned if they were confronted with law that prohibited them from going to libraries or universities or lecture halls or bookstores.</p>
<p>In addition to that, appellants --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: It's a good rhetoric but it is quite different, because there are good many libraries, and lecture halls, and bookstores here in the United States which are available.</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: No, but you see Dr. Aptheker who wants to go to the British museum to look at source material that is not available in this country.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, what if he wanted to go over to some secret installation in the CIA to do its research?</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: That would be different.</p>
<p>CIA could keep anybody out that it is chose too, but that doesn't enable, I mean it's a clear interference with First Amendment rights to say that you can't go, not only to any library but to a specific library.</p>
<p>Now may I say this, at the moment I am not even arguing whether or not these interferences violate the principles of the First Amendment and I'll come to that in a moment.</p>
<p>All I am trying to do now is to show that there is a First Amendment problem here because there are these various aspects of the First Amendment -- First Amendment interest which Section 6 invades.</p>
<p>And what I was trying to show is that Section 6 doesn't just prevent people from traveling, it prevents them from learning as well as from talking and as well as from associating, and of course it doesn't just prevent --</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: Of course it does, in the sense people are entitled to learn.</p>
<p>Now, the people that started the revolution, the American Revolution --</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: That the British Museum isn't subject to our constitution, but this is the United States government that's preventing Dr. Aptheker from going to the British museum, and it is preventing him from going to the British museum while allowing other people to go.</p>
<p>And by preventing Dr. Aptheker, and Ms. Flynn from going to Europe and learning, it is also preventing them from coming back and teaching to people in this country what they have learned and both of them are in the business of teaching people what they learn, both of them are writers and lecturers.</p>
<p>So it is a fact that Section 6 is interfering with the First Amendment right to hear and the First Amendment right to learn of the potential readers and listeners, communists and non-communists or like who might be interested in reading or listening to Dr. Aptheker and Mrs. Flynn.</p>
<p>Now in addition to these restraints which I prescribe and which we consider to be direct, Section 6 also deters the First Amendment Right of association within the United States, and this is so of course because the disability to travel arises from Section 6 solely out of an exercise of the Right of Association, that is membership in a prescribed organization.</p>
<p>And this deterrence not only discourages people from joining organizations, which Subversive Activities Control Board has actually found to be a communist-action or a communist-front organization.</p>
<p>It also operates to deter them from organizations against which proceedings are pending or against which some proceeding might conceivably be instituted.</p>
<p>And it also discourages people from cooperating with or participating in the activities of suspected organizations or organizations which might be suspected, or participating in their activities in ways short of membership, because of the possibility that such cooperation or participation might be interpreted by the passport office as giving the office reason to believe that in fact they are them.</p>
<p>And finally, the Section also intrudes on interests of conscience and privacy.</p>
<p>It makes the association of every would be traveler a matter of public business and a subject of government surveillance, and it subjects every would be traveler to the possible indignity of a loyalty test or a political test before he can qualify to travel.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: I think --</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: What can you suggest to hereabouts (Inaudible)?</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: You mean that's all the statute said?</p>
<p>Yes I certainly would, by all mean.</p>
<p>It would be a -- it would violate the Fifth Amendment as an indiscriminate and purposeless restriction on its liberty and I also think it would interfere the First Amendment.</p>
<p>It would involve a great many of these things that I have mentioned including the necessity for the government to determine whether every traveler is or is not a communist.</p>
<p>Now I have mentioned the several different ways both direct and indirect in which we think that Section 6 interferes very substantially with the First Amendment interests of both communist and non-communists, and now I want to come to the theoretical bases on which we think those interferences violate the First Amendment.</p>
<p>Now one principle which is clear under the First Amendment and which is a common place, whatever else maybe obscure about the First Amendment, is the principle of precision of regulation.</p>
<p>As I say, this Court has stated again and again that where the First Amendment area is concerned, the government must regulate narrowly and that it may not as might in cases of regulation subject only to due process for reasons of administrative efficiency, control or burden the exercise protected rights in order to aid the regulation of unprotected conduct, nor may it, in the First Amendment area, ignore the availability of less drastic means for achieving the same basic purposes.</p>
<p>Now Section 6 is so broad that it obviously violates this principle.</p>
<p>It bars the travel not only of people who are going abroad for criminal or dangerous purposes, but also of people who wish to go abroad, as here, for innocuous and protected purposes.</p>
<p>If the government could not make it a crime consistent with the First Amendment and I am sure it could not, it couldn't make it a crime for Dr. Aptheker to study at the British Museum and it couldn't make it a crime for Ms. Flynn to look at the paintings at the Louvre, by the same token the government cannot impose a prior restraint on Dr. Aptheker and Ms. Flynn from going to the museum or going to the Louvre for those purposes.</p>
<p>Now this excessive breadth of Section 6 is the inevitable result of the indirect, and I may say, even perverse manner in which Congress chose to legislation.</p>
<p>On the one hand Congress said its purpose is to prevent conspiratorial communication.</p>
<p>But Section 6 doesn't prohibit or punish conspiratorial communication.</p>
<p>There is nothing to stop, so far as Section 6 is concerned, any number of individuals from traveling aboard for the purposes of the conspiring to engage in dangerous activities or to bring revolution to this country.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: Supposing Ms. Flynn has handed a resignation from (Inaudible)?</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: Theoretically she would, she'd have an awful time getting one, and as a matter of fact --</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: No, no that's right so far as the statute is concerned you can get your due process constitutional liberty to travel provided you surrender your First Amendment right to be a member of the Communist Party.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: Well certainly, people have the First Amendment right to be members of political parties.</p>
<p>Now you don't have a right to be a member of a party with knowledge and intent that this party is going to engage in dangerous activity.</p>
<p>But as I understand from the Scales case all the -- even the cases which upheld convictions of Communist, from the Douds case, now of course there is a First Amendment right to be a member of the Communist Party in order to engage in its peaceable political activities which nobody doubts that it does engage.</p>
<p>Now, so by this perverse mechanism, the statute instead of prohibiting what it said it was after, that is going abroad for conspiratorial communication, all it did is prohibit people from going abroad merely because they are members of certain organizations.</p>
<p>Now even the government recognizes in its brief that it is inconceivable and unreasonable to suppose that every communist will, every time he goes abroad, engage in dangerous talk or activity.</p>
<p>Therefore, it automatically follows that Section 6 inevitably suppresses a great volume of protected speech and association along with whatever slight amount of unprotected communication it might speculatively prevent.</p>
<p>Now the government and some of the questions from the bench appear to justify this approach on the ground that Congress could reasonably believe that the Communist Party is a bad organization.</p>
<p>But even if it were true, that would not permit Congress constitutionally to prevent communist from engaging in peaceable speech and association or to punish them for doing so, because it is unconstitutional to abridge the protected speech and association, not because of the nature of the speech or the association, but because of the identity of the speaker and even more so because of the identity of the organization to which he belongs.</p>
<p>And I thought this was settled as far back as 1937 in De Jonge against Oregon.</p>
<p>And there the Court held that even assuming that the Communist Party was guilty of criminal syndicalism, the state could not, consistent with the First Amendment, punish persons, members of the Communist Party for conducting peaceable party meetings.</p>
<p>Now in fact Section 6 goes beyond the Oregon statute that De Jonge invalidated.</p>
<p>After all, Mr. De Jonge in this meeting that he was conducted and which was held to be beyond the state's reach, Mr. De Jonge was carrying on Communist Party business when he conducted this protected meeting.</p>
<p>He was running a meeting to protest anti-strike activity which was sponsored by the party and he urged the audience to join the party.</p>
<p>But Section 6 is broader, because it applies to members of the Communist Party even when they desire to travel abroad for reasons unconnected with party business.</p>
<p>Furthermore, the statute in De Jonge required the state to prove that the Communist Party advocated criminal syndicalism.</p>
<p>But Section 6 doesn't require any proof that the Communist Party engages in any criminal conduct or that it engages in any advocacy which is of an unprotected nature.</p>
<p>And the fact is that the Subversive Activities Control Board, which is no friend of the Communist Party, after lengthy hearings was unable to find and did not find that the Communist Party engages in criminal activities or in incitement for violent overthrow.</p>
<p>Now these defects to Section 6, including that it's too broad because it also applies as Mr. Abt pointed to members who are innocent, as well as guilty, are magnified by the fact that it is a prior as well as indiscriminate restraint.</p>
<p>In Near against Minnesota, the Court struck down as a prior restraint, a statute which prohibited the circulation of future issues of a newspaper which had published previous scandalous issues.</p>
<p>Now Section 6 is more extreme.</p>
<p>It prohibits the circulation of persons, not because of any past misconduct of theirs, but because of suspected misconduct by other people in their organization.</p>
<p>Now I think perhaps the most fundamental reason why Section 6 violates the First Amendment is that it is simply incompatible with the amendment that people should have to pass loyalty or political tests as a condition to their engaging in peacetime in the elementary human right of freedom of locomotion.</p>
<p>Now the Court has upheld loyalty screening and persons holding public office or for what it considered quasi public jobs such as labor union offices.</p>
<p>But here the loyalty screening is being applied for the purpose of determining who could engage in purely private pursuits.</p>
<p>If I can borrow the language of the economists, here the loyalty purge or loyalty test is being -- and the loyalty apparatus is being extended from the public sector to the private sector.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Is it you're arguing that the defendant (Inaudible)?</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: I wouldn't consider that a loyalty or a political test.</p>
<p>If they -- you would there get into the problem of preventive detention, but leaving that aside, if you could punish -- and you have the problem of prior restraint, it may be that the Secretary of State could be given authority to prevent people from going abroad to engage in physical violence, espionage, and so forth.</p>
<p>But just to prevent people from going abroad because of that politics is something different.</p>
<p>And the fact is if Congress can impose these political tests on people seeking to travel abroad, because it doesn't like communists or think they're dangerous or communist-front organization, then it can also impose loyalty or political tests as a condition to people engaging in the pursuits of driving automobiles or to people travelling in the subways or to people buying food.</p>
<p>Now I'm sure it is just as important to the Communist Movement that officials of the Communist Party be able to drive automobiles, travel in subways, or buy food as it is for them to travel abroad.</p>
<p>And yet if Congress can impose these kind of political and loyalty test which has nothing to do with what the person is doing or going to do, but just political considerations, if it can transport the government loyalty test to all these private everyday activities, then we just have to stop pretending that we have a free society because everybody is subject to a loyalty test for everything he does.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, let's stop pretending that this case is about buying food or travelling in subways too, because it isn't.</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: No it's about travelling, which is a fundamental human right.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Outside North America.</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: Well if the Secretary of State tomorrow should decide to require passports to Canada, Mexico, and so forth then automatically Section 6 would be applicable to the rest of the country.</p>
<p>So it's preventing people from going to --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That has nothing to do with going to the grocery store and buying food and that's --</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: No but the person --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And let's just say, case is before us, which is difficult enough.</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: Now the principle is the same, the principle is of imposing loyalty tests on people who are going abroad, travelling for private purposes, on the justification that people going abroad might do harm.</p>
<p>What I was pointing out that the justification for controlling them from travelling on the subway is even stronger.</p>
<p>It's a much more factless thing just to prevent them from going to Europe, if you really want to stop them from being dangerous, you just stop them from doing anything, yes.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible)</p>
<!-- Joseph_Forer--><p><b>Mr. Joseph Forer</b>: I suspect that some of the justices are joined in the Japanese relocation cases may have second thoughts about it at this late stage, but in any event those cases were upheld purely as an extraordinary exercise of the war power because of war condition.</p>
<p>We will reserve the rest of our time for rebuttal.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Chayes.</p>
<p>Argument of Abram Chayes</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Mr. Chief Justice, may I please the Court.</p>
<p>As Justice Goldberg has just said, the Court is again called upon in these cases before us today to deal with another of the difficult almost agonizing problems that have emerged from the efforts of Congress in this statute and others to deal with what all must recognize was a reasonably judged threat to our national security.</p>
<p>What was that threat?</p>
<p>The existence as Congress found of an International Communist Movement dominated by a foreign power, dedicated to the purpose and object of imposing in this country a communist totalitarian dictatorship.</p>
<p>Operating through organizations of disciplined members acting to further those purposes in countries outsides of the center and found of the world movement.</p>
<p>Those findings of which this Court, as Justice Douglas said in the Communist Party case, have often -- has often taken judicial notice, are also before the Court now as findings of a legislature, of a coordinate branch of the government acting in the exercise of its constitutional duty, and those findings also have been held by this Court in the Communist Party case to be findings which Congress could make on the record before it.</p>
<p>That is the problem that Congress was trying to deal with.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Did Congress have to make the findings of fact in order to draft the bill?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Mr. Justice Black it is clear that the situation with respect to which Congress acts is always one of the elements in determining whether its action is reasonable or is within constitutional limits.</p>
<p>As Justice Goldberg said a moment ago, this Court sustained the confinement of persons based only on their race in relocation camps during the war, because the circumstances then prevailing and as then appeared to the Congress were of such magnitude as to justify it.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Are you depending on that case for justifying this position?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No sir I'm saying only that as this Court has often said, emergency does not create power, but it may create the occasion for its exercise.</p>
<p>As Mr. Justice Goldberg said, we are not now at war.</p>
<p>But we are in a cold war, that cold war has certain characteristics and certainly those characteristics create the occasion for Congress to seek to deal with them, and this Court has so held time and time again.</p>
<p>Now appellants here are members of the Communist Party of the United States, indeed Mrs. Flynn is the Chairman of that party and Mr. Aptheker is Editor of its theoretical journal.</p>
<p>This was established on the record in a full administrative hearing in the Department of State, and indeed I take it this much is admitted by appellants for the purposes of this case.</p>
<p>The Communist Party is one of those organizations which Congress said existed, dominated by a foreign power, the Soviet Union, dedicated to imposing a communist dictatorship in this country, prepared to use any necessary means to that end, whether a force or a fraud.</p>
<p>And this too was established in a full administrative hearing after which the party was ordered to register.</p>
<p>That is the character of this particular organization was established in a proceeding at which it had full opportunity to present evidence and to make argument that it was not this kind of organization which was dedicated to these purposes and furthering these ends.</p>
<p>And it was found by the Board that it was such an organization.</p>
<p>And on review in this Court, the registration order of the Board was sustained by a vote of 5:4.</p>
<p>But the findings of fact about the character of this organization were accepted by seven of the justices on this Court.</p>
<p>None, I might say, more succinctly or emphatically than by Mr. Justice Douglas who dissented from the registration order on another ground.</p>
<p>He said, the Board found that the Communist Party of the United States is a disciplined organization, operating in this nation under Soviet control to install a Soviet style dictatorship in the United States.</p>
<p>Those findings are based I think on facts and I would not disturb them.</p>
<p>Now Congress found also in this statute and on the record before it, it could so find that travel abroad by members of the Communist Party was an important means, indeed it said a prerequisite for advancing the purposes of that party.</p>
<p>The record before it showed travel by United States members of the party abroad not only to visit the British museum.</p>
<p>But for instruction and training to transmit and receive orders, to report to establish face-to-face contact among leaders and members.</p>
<p>And I think it's almost self-evident that a world wide conspiratorial organization of the kind which Congress found this world communist movement to be, acting through a variety of discrete and semi covert organizations throughout the world, as Congress found this movement to act, must depend on travel and face to face contact to bind it together and to transmit impulses for action to its constituent parts.</p>
<p>And so Congress, on this record and on these findings before it, a legislative record as we know that extended over ten years of investigation and analysis, during which as my friend for the appellants pointed out, events happened to the Korean War, the fall of Czechoslovakia, the Berlin Blockade, all of which were seen before Congress as a part of the world movement with which it was trying to deal.</p>
<p>But as part of a comprehensive statutory scheme designed to frustrate the purposes of this World Communist Movement, Congress enacted that members of American organizations controlled by that movement and acting predominantly to further its interests should be denied passports, a prerequisite in most cases to travel abroad.</p>
<p>Now it's pursuant to that enactment that the passports of these two appellants were withdrawn and the question before the Court is, can this be done within the constitution.</p>
<p>Now as appellants have pointed out, there are two fundamental grounds of constitutional attack here, one under the Fifth Amendment and one under the First Amendment, and both them ought to be dealt with separately, because different standards and different tests are applicable under each.</p>
<p>As is often the case, both parties here are agreed as to the words in which those tests are expressed and the question becomes how those test are to be applied in a particular case.</p>
<p>For the Fifth Amendment, our starting point is Kent and Dulles.</p>
<p>That case, as the Court knows, says that travel is part of the liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment.</p>
<p>In other words, when speaking of travel generally, generically one might say, the Court was careful to say that the protection was the protection afforded by the Fifth Amendment, and as the appellants have said, the test under the Fifth Amendment is essentially what is fair, what is reasonable.</p>
<p>Is this measure a rational means to an end that Congress could entertain under the constitution or is it arbitrary?</p>
<p>Does it bear so little rational relation to a proper congressional purpose that we must put it down to whim or passion or prejudice rather than the action of reasonable men in pursuit of the great ends of government?</p>
<p>The second question is under the First Amendment, and there, as my friend pointed out, it is clear in this case as it was in the Douds case that the operation of this statute acts to inhibit the exercise of certain rights of speech and association by certain people.</p>
<p>That is what makes a First Amendment question.</p>
<p>There were no inhibition on those rights of associations and they are particularly in this case association rather than belief or speech as Mr. Justice Goldberg pointed out when he -- or I guess it was Mr. Justice Harlan when he talked about the power to resign and continue to speak and believe everything else that you may speak or believe.</p>
<p>In this case, as I say as in Douds, the government concedes that there is inhibition in the statute on the rights of association and that is the beginning of analysis of the First Amendment problem.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: What impediment upon freedom of association do you concede the freedom to associate in the Communist Party of the United States or the freedom to associate abroad with other communists or both?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I think you have to look at both -- at both the categories that the appellants have advanced somewhat differently.</p>
<p>It is clear that as to American citizens joining the Communist Party, this exercise is the same kind of inhibition as the Douds requirement did or as to person within the United States joining the Communist Party, it exercise the same kind of inhibition as to aliens within the United States as the deportation cases do.</p>
<p>In other words, it makes a disability, some disability, not a prohibition of speech but a disability, depend upon an association and therefore inhibits to that extent the association.</p>
<p>Now as to the other part of the argument, it is true of course that if Dr. Aptheker or Mrs. Flynn can't go abroad, they can't go to the British museum.</p>
<p>But if we take the view that that by itself raises a First Amendment problem and an insoluble First Amendment problem, because it's a direct prohibition of speech, then the whole analysis in Kent and Dulles is gone.</p>
<p>Then the restraint on travel or the restriction of travel is not a deprival of Fifth Amendment liberty but of First Amendment rights, and if that's so we ought -- the Court ought never to have come to the conclusion that it did in Dulles that the Amendment which protects travel, qua travel is the Fifth Amendment.</p>
<p>Here we are dealing, and as Mr. Justice Goldberg pointed out, if the appellants' arguments is correct, we could not prohibit a person from going abroad if we knew he was going to commit espionage because he might also be going to visit the British Museum.</p>
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Wed, 16 Jan 2013 22:48:42 +000086197 at http://www.oyez.orgAptheker v. Secretary Of State - Oral Argument, Part 2http://www.oyez.org/cases/1960-1969/1963/1963_461/argument-2
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Case:&nbsp;</div>
<a href="/cases/1960-1969/1963/1963_461">Aptheker v. Secretary Of State</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Abram Chayes</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Mr. Chief Justice, may it please the court.</p>
<p>When we recessed a half a hour ago we had just reached the point of identifying in the large the two constitutional attacks on the statute, two bases for constitutional attack.</p>
<p>And I would now like to turn in the first instance to the Fifth Amendment attack.</p>
<p>And as we said, the question here is, is this fair, is it reasonable, is it a rational means to an end that Congress is free to pursue under the constitution.</p>
<p>Now it seems to me that this is fairly readily disposed of the end that Congress is pursing is the preservation of the national security by frustrating the purposes and objectives of a world movement which is dedicated to overthrowing our government.</p>
<p>And as this Court quoting Madison in the 41st federal has said, protection against foreign danger is one of the primitive objects of civil society.</p>
<p>It is an avowed an essential object of the American Union, the power requisite for obtaining it must be effectually confided to the federal counsels.</p>
<p>So we have an appropriate end, an end that Congress can constitutionally entertain.</p>
<p>And we have a finding that Congress has made on the basis of evidence that travel is a necessary part of the apparatus, the integument of this world organization whose purposes it is seeking to frustrate.</p>
<p>So that it is then not irrational to seek to prevent that travel as a way of seeking to prevent the attainment of those unlawful objectives.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I don't -- I am not sure I thoroughly understand what you say -- the basic source of congressional power.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: I think we agreed that the basic source of congressional power is the power to protect and defend the national security against foreign danger, foreign danger acting internally through dominated and controlled organizations.</p>
<p>And a foreign, a foreign movement which requires, because it's working at a distance, because it's working through semi-covert internal organizations, requires travel to establish contact and strength and tie the bonds with those internal organizations.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Is this the war power?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No sir, it's not war time and therefore it's not the war power.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Is it the implicit power to regulate foreign relation?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No sir, I think it's power to take, take action to protect and defend the security of the United States.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That's what I am --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Now that's part of the power to conduct foreign relations because the object, one of the main objects of our foreign policy is it must be of our domestic policy is to protect the security of the United States.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: It's not the commerce power?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It's not the commerce power, no sir.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I just want to know where you found it in the constitution.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: I find it in the sovereign, the inherent power of every sovereign to protect its own existence against foreign danger.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: In the Edwards case, Edwards versus California, the Court I think had the power to restrict travel of citizens inside the country on the Commerce Clause.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Yes it did in the Edwards case although as you know Mr. Justice Douglas the Crandall and Nevada suggested and other comments have suggested --</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: That was a minority view I think in that case.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Yes, but it seems to me one has to consider that it is also --</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: I was wondering if you could, under the theory, you now advance whatever commerce power, foreign commerce or what not, whether you could justify an act of Congress that would make all members of the Communist Party in-house custody here.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well I think that's imprisonment and this isn't imprisonment.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: I mean in their own house.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Yes it still is, I think when you get to confining people in a narrow room that comes to be imprisonment and that is the kind of punishment that has to be taken on the basis of a judicial trail.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Or instead of a house custody perhaps within a radius say 10 miles from their house.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well I think there have been certain circumstances as the court knows in which the court has sustained that power as to American citizens.</p>
<p>Now they are --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: They are, they are circumstances of acute danger, yes.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: That's, that would -- that's on the war power.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Yes, and all that we say here is that the danger may not be so grave as to justify that kind of confinement, but it is plain enough --</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: But If I do -- kill them of communication or preventing or affording or making it more difficult, that would I think strike really deep?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well the question is in each case, what is the danger perceived, how reasonable are the relations as the means to the end.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Would you think that these people could have got a passport if they had shown that their parents were dying in Paris?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: They can't get a passport but the Secretary of State has discretionary authority under Section 215 to waive the requirement of passport for exit.</p>
<p>Now my friend said that that won't waive the requirement of the foreign government for a passport as a means of entry, but in fact we will also give a document of identification which is in most cases enough to get him into a country that has a passport entry requirement.</p>
<p>So that there does exist under the statute as it now stands I believe adequate power for the Secretary of State to make an exception in meritorious circumstances.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: Had any exceptions been made?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No we haven't had any applications for an exception since this statute has been in effect.</p>
<p>But it is true that the before Kent and Briehl, before those cases in which the court struck down our administration practice, when we were denying passports to communists on the basis of our internal regulations, we did make an exception in one case I think on the basis of the secretary's power to make exceptions under Section 2 (15).</p>
<!-- unk--><p><b> Unknown Speaker</b>: You mean that no man has the right to travel (Inaudible), and that one man, the Secretary of State, gives them a right to travel under his discretion?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No person who has been shown on an open record to be a member of the Communist Party has a right to a passport unless the Secretary of State --</p>
<!-- unk--><p><b> Unknown Speaker</b>: But of course others parties could be named.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well the only parties that can be named are parties that are also found on an open record and at the end of a judicial type hearing to have these characteristics namely foreign control, dedicated to the purpose of imposing a dictatorship here, and committed to doing it by whatever means it's necessary.</p>
<!-- unk--><p><b> Unknown Speaker</b>: What constitutional provision limits to that?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, we are saying that's what the statute requires in this case.</p>
<!-- unk--><p><b> Unknown Speaker</b>: I'm talking about what constitutional provision limits to that.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Our -- the argument that we are making sir is that when a statute is so limited, it falls within an appropriate power to protect against threats to the national security, and that Congress -- the question here is not what the limits are of congressional action but whether this statute is constitutional.</p>
<p>And we say that this statute is so limited to parties of this kind.</p>
<p>Remember, if it please the Court, the Communist Party is not designated here by affiant either legislative or administrative.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Why hasn't it?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Nobody picked the Communist Party out and said it was a bad party and therefore people can't travel.</p>
<p>It was found to be a party having certain characteristics after a full administrative hearing complying with all the safeguards of procedural due process in which it was free however it chose to meet the charge that it had these characteristics and it was found to have had them and this Court sustained those findings.</p>
<!-- unk--><p><b> Unknown Speaker</b>: In an administrative hearings?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: This Court sustained the findings.</p>
<!-- unk--><p><b> Unknown Speaker</b>: I understand that, in administrative hearing now --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It was a full hearing and requirement of substantial -- of preponderance of evidence in the statute.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible) for administrative or military tribunal?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, we are now talking I think for the moment about the question whether this is a rational means to this end.</p>
<p>And all I am suggesting is that having established these preconditions namely that the organization is found to have these characteristics in an administrative hearing, that the parties -- the persons are found to be members of the party in a full due process hearing, that the organization is found by Congress to depend on travel, it's not irrational then to seek to inhibit travel in order to frustrate the objectives that the movement is seeking to accomplish.</p>
<!-- unk--><p><b> Unknown Speaker</b>: This very statute (Inaudible) an act that doesn't necessary to have absolute prohibition?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well that's what I was going to say -- oh absolute prohibition on travel.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Could they take that into consideration?</p>
<p>Suppose -- I suppose the different shades and types of communists, some are perhaps more dangerous than others, you're telling.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I think that's exactly the main burden of the attack on the statute under the Fifth Amendment.</p>
<p>It is that to say that all communists can't be permitted or given passports is too broad, so broad as to be irrational.</p>
<p>But I submit that at least for the Fifth Amendment side of the case, I think perhaps different considerations would and different principles would operate.</p>
<p>I think those principles operate to sustain, but different principle operate on the First Amendment side of the case, but for the Fifth Amendment side of the case, I think we are in the same place we were in American Communication Association versus Douds, where this Court said that the mere fact that membership in a political association is made the basis of classification does not mean that the classification is irrational or unconstitutional.</p>
<p>And indeed the Court will remember that in the Douds case again two of the dissenters, Justices Frankfurter and Jackson, upheld the oath on the membership side of the oath.</p>
<p>They were worried about the belief side of the oath; there is no belief issue here.</p>
<p>There is an objective standard, membership.</p>
<p>Now why did Douds say that?</p>
<p>Douds cited a whole series of cases; it cited Agnew versus Board of Governors or the Federal Reserve, upholding a statute, which prohibited all underwriters from serving as officers or directors of national banks.</p>
<p>It wasn't necessary to bring home to the particular underwriter that he might be going to commit a breach of trust or have a conflict of interest on the national bank.</p>
<p>It was enough that the class was rationally related, the classification was rationally related to the evil to be forestalled.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: (Inaudible), while this statute bars the members of the party (Inaudible), and they want to travel abroad.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: And they want to travel, travel aboard.</p>
<p>Well I think again if I may address that on the First Amendment side of the case, because I think that's where it was addressed in Douds.</p>
<p>I just want to establish here that the general principle, that the classification, is not necessarily related to the particular persons of whom undesirable activity can be expected, is always the case, where the Congress tries to anticipate the evil rather than act after the evil has occurred, because the consequence of trying to anticipate the evil is you don't know whether any particular person is going to do the undesirable act, and so if Congress is to have the power to forestall evil, as it did in the Public Utility Holding Company Act cases, as it did in the board -- the Agnew case, and as it does over and over and over again.</p>
<p>Every factory is subject to inspection under the Food and Drug Act, why?</p>
<p>Not because we believe a particular manufacturer, we don't have to start with the proposition that a particular manufacturer is probably doing the bad thing.</p>
<p>We are trying to forestall he is doing the bad thing, and that's why the classification must be broader than merely those whom we now already are engaging in the disapproved conduct.</p>
<p>And the consequences saying we can't draw the circle any narrower or any broader than those who are already engaging or will engage that we know will engage in the conduct is to say we can't act in advance at all.</p>
<p>And so the only question is, is this a rational class, is it rational to say that all lawyers should be disqualified from jury service, for example, because some, maybe may not follow the instruction of the judge, but the instruction of their law professor.</p>
<p>Is it rational to do all the other things that we do on the basis of anticipatory desire to forestall conduct that it is appropriate to seek to forestall?</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Why does it have to be rational?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It had to, because otherwise unless it's somehow related to what we are trying to do, then it's arbitrary, and that is a violation of the due process clause.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: If I hear it correct at the beginning of your argument, there you said that you didn't have to depend much charge on whether or not it's rational to do this if you assume the government had the right to put a party out of business.</p>
<p>Of course it's rational, it's rational to do every one of the things that had been done and many more.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I don't see why that argument has -- why you have to struggle with it.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Because -- well I don't I don't think I have to struggle with it very hard either Mr. Justice Black, I think that's the sum total of the Fifth Amendment argument.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: If the government has the power to put the party out of business in this way, everybody in it, it can do that in many more things.</p>
<p>They could put them all out of jobs, keep them from getting jobs, as has been frequently attempted and in many respects it has been done.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I think the Court has held in the --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Keep them from morning run.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: In the Communist Party case that it was not the object of the government to put the party out of business.</p>
<p>I think that was --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What was it about then?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Expressly considered in the Communist Party case and the Court held no, that wasn't the idea --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What was that object?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: That Court held that the object of the -- this statutory scheme was not to put the Communist Party out of business, but was to regulate the conditions under which it could act.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But why shouldn't it has the power to do it, which is dangerous that you say they found it to be.</p>
<p>I don't understand that, you are not to (Inaudible).</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: They are trying to frustrate the evil objectives which Congress found.</p>
<p>Now the fact that Congress did so having a care to other rights and principles that operate also in the premises shouldn't make the act unconstitutional, quite the reverse, the fact that the --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: The Court to pass on that weighing the circumstances each time.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: The Court -- it doesn't have to pass on anything in this case, but the question whether the withdrawal of a passport from these two appellants under these circumstances was beyond the congressional power.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But you say that depends on whether we think that what they did right?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, it does for the Fifth Amendment part of the argument, yes sir, and that's why I say I don't think the Fifth Amendment part of the argument is very different.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That makes us the final arbiter of whether a law is constitutional, despite what the constitution -- what the Congress does?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No, you have to judge what Congress does and you have to judge it as you well -- all well understand with under the Fifth Amendment with deference to the fact that Congress has made this choice and that Congress has made this choice.</p>
<p>So to say that it's an irrational choice, it's the exercise of a very, very --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: That's such an easy word for determining whether something violates the constitution, it's likes those easy words that allow you to bypass the words of a constitutional provision such as irrational and capricious.</p>
<p>It's always easy to find that one way or the other, you don't have to cover much of that.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I don't know --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: And the Court does you say.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: I say the Court has done it, and has done it over and over again.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I agree with you.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: And I say that I don't know any other test under the Fifth Amendment.</p>
<p>Now I think the real problem of this case and the real issues of difficulty and there are issues of difficulty arise not under the Fifth Amendment because as Mr. Justice Black has said it's not hard to find rationality in this pattern given the premises that Congress acted on and that this Court has said they could act on.</p>
<p>So the real problem --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I find none at all.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: What?</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I find none at all.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Fine.</p>
<p>I am pleased to accept your --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: (Inaudible)</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Yes, I'm pleased to accept the concession Mr. Justice Black. [Laughing]</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I agree with you.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: The real issues here are under the First Amendment.</p>
<p>And as our -- the counsel for the appellants say, the question here is, is the statute narrowly drawn so as to keep to a minimum the impingement and the peripheral impingement on First Amendment rights, which we've already defined and discussed.</p>
<p>And I say this statute is narrowly drawn. Nobody here is prevented from travel on suspicion or on some -- on the basis of some secret dossier.</p>
<p>In fact, quite the reverse, both on the procedural side and on the substantive side the statute is drawn as narrowly as possible consistent with the congressional purpose.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well I'm somewhat, I would say, surprised Mr. Justice Goldberg to hear it said that a statute which permits the Secretary of State to withhold a passport if he finds that the travel maybe inimical to the national security or national interest of United States is narrower somehow than this statute.</p>
<p>Look at that standard, the standard that it --</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible), and I am looking at the fact that (Inaudible).</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well I would only say Mr. Justice Goldberg that in the Briehl case itself, the Court said as to our then existing regulation, which you recall permitted the withdrawal of a passport not because of membership in the Communist Party but because the conduct abroad would be inimical to the interest of the United States and which took, only took Communist Party membership into account as appellants say would be a proper situation.</p>
<p>What the Court said about that is, and it said, “The only law which Congress has passed expressly curtailing the movement of Communists across our borders has not yet become effective.”</p>
<p>That was this Section 6 that we're now talking about.</p>
<p>It would therefore be strange to infer that pending the effectiveness of that law, the Secretary has been silently granted by Congress the larger, the more pervasive power to curtail in his discretion the free movement of citizens in order to satisfy himself about their beliefs.</p>
<p>Now I think it's possible in a sort of an abstract logical sense to say that all you're worried about is conduct abroad that's going to be dangerous to our security and therefore in order to prevent travel, you ought to have some showing that the conduct is likely to be dangerous to our security.</p>
<p>And that has a very plausible and pleasing sound to it, and I don't deny that abstractly that sounds like a narrower regulation.</p>
<p>But if you think of the problem of administering that kind of statute, if you think of the problem of appraising evidence to fathom an individual's future intentions, if you think of the problem of what this is, giving the person the opportunity to go abroad and there to do what he pleases.</p>
<p>He may correctly have no and properly say that he has no intention of doing anything wrong, when he appears before the hearing, but when he gets over there, there may then be an opportunity to engage in the wrongful activity which he embraces, indeed that's happened and cases of that kind are cited, of misuse of passport after accepting stipulations.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Surely, and all I say is that -- to say that that's narrower than the inhabitation proposed here, is to me a strange way of dealing with it, because what have we done when we've had to -- when we've had to administer standards of that kind.</p>
<p>We have relied on confidential evidence, because after all if you have a standard of that kind, the necessity or the desirability of seeming -- of relying on confidential evidence seems greater.</p>
<p>So most of these bills that are cited in the appellants' brief do provide that in certain cases the Secretary may rely on secret or confidential evidence.</p>
<p>We reverse burdens of proof which is in fact what we did in the passport regulations that existed in Kent and Briehl, in the Kent and Briehl cases.</p>
<p>It was necessary for the applicant to satisfy the Secretary that he was going abroad for a bad end -- an innocent end or we throw the net wider.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: Assuming what I sought that this was, as you were saying (Inaudible).</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Yes but also --</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: But it was also possible to deny passports to people who weren't members at all, who we suspected on various grounds without any objective indicia of dedication to these ends.</p>
<p>And so when you put all these things together, which I submit Mr. Justice Goldberg are the practicalities of administering this kind of a standard and if you look to see which one is going to inhibit protected activity more, which one is going to have a wider reach within the population, which is the imposition of a loyalty oath and a loyalty test.</p>
<p>The standard which appellants suggest is the appropriate one, would in fact be broader than the standard we have here.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I think we do have the statute and our regulations provide that if a person is going abroad for the specific purpose of conducting unlawful activities abroad, he can be denied a passport, and we have done that upon occasion.</p>
<p>So that an espionage person, the person who is actually going abroad and we know that he is going abroad to do something unlawful is covered, and I think the Court in the Kent case said that that was an appropriate regulation of the passport right.</p>
<p>So the difficulty is that it only happens in the rarest of case that we know that a person is going abroad for espionage.</p>
<p>And my friends say that the prevention of espionage is the only object of this statue.</p>
<p>I think that's not the case.</p>
<p>I think anybody who has engaged in a cooperative venture, all of us have engaged in many for business, for pleasure, for government, knows that face-to-face contact, knowledge, understanding of the minds and of the actions of one's co-participants is an essential to the success of that kind of venture.</p>
<p>This isn't speech in the accepted sense, this isn't associated in the accepted sense.</p>
<p>This is a team getting together to work for its object as a team.</p>
<p>Now when its objects are unlawful or when its objects are those of the kind that this world organization has, it seems to me necessarily that to follow, that this kind of personal contact face-to-face intercourse is essential to the carrying out of those objects and therefore --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Suppose Congress, instead of passing this law as it did, had passed a law that said that any person who has certain beliefs shall be denied a passport and did not give him a jury trial, would that violate his rights?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I'm not prepared to say that it would.</p>
<p>It would be a much harder case than this.</p>
<p>As the Court --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Why, because it's a just a number of people instead of one?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No because it is not a number of people who simply entertain beliefs, it's a number --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But it might be a -- it might be a little more difficult here because the law, constitution does say something about the right of assembly which all the courts have taken, to me, a right of people to join a party.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, the constitution says something about belief as well, speech as well.</p>
<p>But --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: It says something about a jury trial.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: The point --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: When the government does something to somebody, isn't he entitled to a jury trial.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No when the government imposes disabilities, which are not criminal penalties on a person, he's not necessarily entitled to a jury trail.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What's the difference in -- they put at the end of the act, this is a criminal penalty, and if he believes this, he has certain beliefs the government will -- the Secretary will deny, in his discretion, a passport.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well I think there are two differences, main differences in a criminal penalty.</p>
<p>And I don't disagree that by compounding civil disabilities one can reach the point where one is really prohibiting the activity outright.</p>
<p>But the main difference --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well it is prohibiting these people.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Not from speaking or believing or associating.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, it's prohibiting them going abroad.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Prohibiting -- it's regulating their travel.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: It's regulating it by prohibiting them or keeping them from doing it.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: But not prohibiting speech.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, suppose the law was just the same and you had to try person by person, would they be entitled to an indictment or a trial by jury?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Not in accordance with the -- not according to this legislation which was offered and which these people --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I am talking about according to the (Inaudible) it's supposed to be over the legislative balance.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Mr. Justice Black I don't believe they would be entitled to a jury trial on the issue whether they can have a passport.</p>
<p>For example --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: In other words they can -- Secretary could call any of us down there at any time, we wanted a passport, he say well you have certain beliefs that --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No he has to --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: And if you have these beliefs you can't have a passport.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No, he has to --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: And we have said we want a jury to try this out not you, the administrative agency we couldn't get it.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No the Secretary can act only in accordance with statutory authority given to him by Congress, that's what the Kent case said.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Yes, but I -- it's necessary now and then to remember that there is something that's open to power of Congress, namely the constitution of the United States.</p>
<p>And I'm asking you if the government can take things away that are of value to a citizen without giving him a jury trial.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well every young man --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Individually.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Every young man who served in the army has had his locomotion restricted without a jury trial.</p>
<p>Anyone who is put into quarantine because he has got the smallpox --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What is the relevance of that here?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: The relevance of that --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: He had -- this Court upheld the right of the government to draft denial.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: The relevance of that is --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: And they can't draft denial.</p>
<p>It's not doing anything to them except what it does that everybody alike.</p>
<p>They are not leaving it up to a single administrative agency or man or somebody he appoints maybe he never seen --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Nor --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: -- to pass on what his beliefs are.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Nor is the Congress here.</p>
<p>The Congress here is establishing a general classification, all people holding, falling within that classification are treated alike.</p>
<p>No sir, all people being members having objectively manifested their membership in a certain kind or organization.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: They decide to do it perfectly rational, and it would be rational to try them separately.</p>
<p>Are you going to let them be tried by an administrative agency for their beliefs?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: I don't -- I think the question of trial here is just an apposite.</p>
<p>This isn't a trial for their beliefs.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, what is it?</p>
<p>If you were asking for a passport, and they got you before an administrative agency, they charge you with having bad beliefs --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: There are all --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Do you think they were trying you when they put on evidence before an agency?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: There are all sorts of things that I can be given or denied by government without a jury trial.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Undoubtedly.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: I can --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Undoubtedly, when you have a law that presents a governmental power and applies to everybody alike, and you follow the procedures which the constitution outlines.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: The only -- my only answer to that Mr. Justice Black is that this is not designed as punishment either as punishment for conduct or to prohibit conduct, and once --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, whether you -- punishment is a broad word and includes many things.</p>
<p>I think I would consider it a pretty severe punishment, if I want to go abroad and they say that my beliefs were such, that I couldn't go.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: There is no question that it's a disability and I don't want to demean or deprecate the disability.</p>
<p>But the Court has said that disabilities other than criminal punishment can be imposed on people on the basis of this kind of membership.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Now even a civil case, if the man has a civil case against him, he has a right to a trial by jury.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: The Court has said for example that aliens can be deported on this same basis under the same statute.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Aliens and they drew a distinction there wherever they say aliens, did they say aliens?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well I think the distinction --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Did they say that a non-alien could be citizen?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No, but they said that a non-alien could be deprived of his officership in a labor union or could be required a -- or could be required to swear that he was not a member of this party in order to hold a position in a labor union, which could then make use of the facilities of the labor board.</p>
<p>All I'm saying is that under the decisions of this Court, it's clear that as to matters which don't involve criminal punishment, which don't involve a direct prohibition of speech, association, belief, disabilities maybe imposed on the basis of certain kinds of membership and membership as the Court said only the other day in the Quinones case, membership in which the element of advocacy of unlawful objectives was not brought home to the person upon whom the disability was imposed.</p>
<p>So it seems to me if the constitution resides or is to be found in the interpretations that this Court has given it, I can answer your question very easily.</p>
<p>No, a person is not entitled to a jury trial every time --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: My question is not premised on the First Amendment, there are other provisions of the constitution.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Yes.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: One of them is the right to a trial by jury.</p>
<p>And if the government creates something, I don't know what they designate it, criminal offense or just anything in theory, the argument of the government here has to be that the government can't deprive them of the right to travel on account of disputed fact for what they believe, by letting a single administrator pass on those facts.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, a single administrator on an open record and at a full hearing yes, that's so --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: At a full hearing, but the constitution provides the kind of full hearing a citizen is entitled to, before he has --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Before he is punished for crime.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: It all depends then on the semantic meaning of the word punish.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: But this Court in the Mendoza case only last year I think spent five or six pages of an opinion trying to determine whether a disability, a disability in that case of loss of citizenship, was designed as a punishment for crime in which case the Court decided it was designed as a punishment for crime and then decided it could not be imposed without a jury trial, but in another parallel --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Did that case hold, I've forgotten, did that case hold if they hadn't decided it was a punishment, they wouldn't have been entitled to a jury trial.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: In another parallel case, where they decided that denaturalization was not a punishment for crime, but an exercise of the foreign affairs power they held that denaturalization was not a punishment and that a citizenship could be taken away from him without a jury trial as to the facts.</p>
<p>So there you have in two cases in this Court dealing with the same kind of disability, denaturalization.</p>
<p>The Court in two separate opinions saying in one yes it is a criminal penalty and therefore there must be a jury trial and in the other, no it isn't a criminal penalty, in this case it's a different kind of thing and therefore we need a jury trial.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Your argument leads you to the point that it is the most substanding citizen in the United States against whom there was no block on his (Inaudible), never had been, they want to take away his citizenship, can be done by an administrative agency without a jury trial.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No my argument does not lead me to that point at all.</p>
<p>It says that where denaturalization is imposed as a punishment, and this Court will determine in each particular statutory provision whether it is imposed as a punishment or not.</p>
<p>Where it's imposed as a punishment, it requires a jury trial; where it's imposed for something else, it doesn't require a jury trial.</p>
<p>And I submit those --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: In the case to which you refer Mr. Justice Goldberg wrote --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Wrote the opinion in the Mendoza case I think.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Did he -- did it hold that, I forget.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It holds -- It held that because in that case denaturalization was intended by Congress as a punishment, punishment for desertion I think it was.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What did it say would have been the result if it had not been considered to be full punishment?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I think the whole structure of the opinion indicates that if Mr. Justice Goldberg had found that it was not intended as a punishment, he would not have required a jury trial.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Did he say so, did he say so?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: He did not, no, but Mr. Justice Brennan in a different case did manage to uphold the depravation of citizenship on -- the Perez case I think, on a ground and without a jury trial.</p>
<p>I think in -- we do have to consider, I agree we have to consider whether the accumulation of disabilities mounts up to a prohibition of the activity rather than merely a regulation of it.</p>
<p>But here I submit the statute is drawn so as not to prohibit the activity, but so as to define the conditions under which it maybe carried out and that it seems to me is the difference between the Scales case, for example, which appellants have cited and relied on very heavily and the cases we have here.</p>
<p>You cannot punish speech, you cannot put a man in jail for it, you cannot prohibit it as a norm of conduct without bringing home to that individual and in a trial by jury that he himself advocated the illegal objects of the organization.</p>
<p>But when it comes to disabilities less than criminal penalties, the Court has sustained a number and had sustained them very recently to be imposed without a jury trial and on the basis of association, that is membership without brining home to the individual any unlawful advocacy, any commitment to the unlawful objectives of the organization.</p>
<p>So long as it is shown that his association with the organization is not merely nominal or passive, but is some sort of a meaningful involvement in the association, in the organization's activities.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: It strikes me that the distinction you are now making has got things turn around.</p>
<p>I had always thought that most people were of the view that prior restrain without trial was a more, more serious impairment of free speech and subsequent conviction after the speech had been delivered and with the conviction with all the charges of a criminal term.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, the point is that this is not designed as a prior restraint on speech, as was the case in Near versus Minnesota or the obscenity statutes.</p>
<p>It's not designed to prevent people in advance from saying dangerous things or to keep them from access to the marketplace of ideas.</p>
<p>It's designed to prevent them from doing other things, contributing in other ways to the success and to the objectives of this world organization which we have already described.</p>
<p>Although unfortunately at the same time, they may also be speaking or associating, and that's why it's not a prior restraint case in the sense of Near or the licensing cases and so on.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: You know it's -- you mean it's not been intended to keep them from going aboard because, as here, that he may converge with somebody about his idea.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No it's not.</p>
<p>It's not intended as a regulation of speech at all, it has as we all agree the consequences of preventing some speech and inhibiting some association.</p>
<p>But the question there is not to be judged in the same way as it was in De Jonge and Oregon, the case on which the appellant relies where the problem was can you prohibit this speech, can you put a man in jail for this speech.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: Now, this has had -- there is something that you can see, but this is not necessary to tailor the statute (Inaudible) for a particular reason that Congress felt he could.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It is necessary to tailor the statute in that way, and we submit that this statute is so tailored.</p>
<p>I could read just one quotation from Justice Jackson in the Douds case when he talked about the inferences which Congress could draw from membership in this organization.</p>
<p>‘Inferences for membership in such an organization,' he said, ‘are justifiably different from those to be drawn from membership in the usual type of political party.</p>
<p>Individuals who assume such obligations are chargeable on ordinary conspiracy principles with responsibility for and participation in all that makes up the parties program.'</p>
<p>And that was in an opinion where he said, you couldn't make a disability depend on belief, but you could on membership in this kind of organization.</p>
<p>As this Court has held over and over again in the deportation cases, in Douds, and in other similar cases.</p>
<p>I would say, if it please the Court that as the discussion has shown this is not an easy case, it's a case which presents us, the Congress in the first instance, the administration in the second, and now the court sitting in review with the agony of choice.</p>
<p>We have here great ends of government on both sides of the scale.</p>
<p>Great end of free speech and free association to which we are dedicated.</p>
<p>And on the other side of the scale the great end of protecting the security of our government.</p>
<p>Congress was faced with this choice in the first instance, the choice was a necessary one.</p>
<p>You can't have one and still have the other.</p>
<p>You've got to make some choice if you are going to deal with this problem, and the alternative, the alternative is to prohibit Congress to prevent it, to say it does not have the power to deal with this problem.</p>
<p>Congress made the choice, I submit, that in Fifth Amendment terms, it was a rational choice.</p>
<p>I submit that in First Amendment terms, it was a choice, which in practical consequence was the narrow choice rather than the broad choice, that a statute directed to suspicion of evil conduct aboard, a statute permitting as would seem to be necessary under any other standard resort to secret information, is a broader statute not a narrower statute.</p>
<p>However, it may seem superficially that here Congress insisted upon full procedural due process in which every person subject to the disabilities of this statute have the right to meet the evidence against him, to appear by attorney, and to make argument and to have a decision on the record.</p>
<p>I submit that it chose an objective criteria as this Court has said in Killian and in the deportation cases, an objective criteria, a criteria manifested by objective acts.</p>
<p>What Mr. Justice Brennan called membership in the Douds sense in his dissent in the Killian case.</p>
<p>That's the kind of criterion that has been chosen here.</p>
<p>It's an objective criterion and it has the effect of narrowing the statute rather than submitting the applicant to the whim or the suspicion of an administrator.</p>
<p>For these reasons --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Mr. Chayes does your approach leave any room at all for distinguishing between these particular people who are involved here and any other member of the party or --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well I think --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: -- you stand their -- you stand or fall on the validity of these, this statute, these -- of the any member.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No, I think it's very important to note that the Court need only decide the case for these two appellants and as to these two appellants, as we have already said, they are the president of the party and the editor of its chief theoretical journal.</p>
<p>The record is replete with evidence which by any standard of meaningfulness makes their association with the party meaningful, so that we do believe the Court can decide on these two appellants and leave for another day someone whose contact with the party is less intimate.</p>
<p>On the other hand we do --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Does that mean that you agree that just being a member of the Communist Party is not enough?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No we believe that you have to be a member in the sense which member has been decided in cases in this Court construing the same term in other sections of the same statute.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But he is a member, he is a member of that party, that's all.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: But we say that the Court need not, all I am answering is Mr. Justice White's question.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: You got to hold it over the heads of all of them, so that each time you can say well there is enough on this one, but never get the other types of --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No, Mr. Justice Black we've defended, and my argument has been premised on defending the constitutionality of the statute on its face.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What's the difference in it as that way, and an ancient bill of attainder such as they had many times in England and Scotland and Ireland?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, the reason or the difference is that anyone can remove himself by that -- from the pains of the statute by simply resigning from the party as I guess Mr. Justice Harlan stated, and the essential character of a bill of attainder is that it's existing punishment, it's present punishment for past conduct without a jury trial.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: It was a legislative determination on findings which they sometimes made and sometimes didn't that a whole group of people were tainted, some of them had to be ostracized, some of them wouldn't be permitted to go within 10 miles of London or whatever it was, some of them would be tried for one thing or another.</p>
<p>But it was a legislative determination on their finding.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, here we say, there was no legislative determination on these people or on this party.</p>
<p>These people and this party had a judicial type hearing before administrative, before administrative agencies subject to review in court.</p>
<p>And --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I suspect you rely very heavily on the finding of Congress that's the reason I ask you about it a lot.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: We have finding of Congress which described the problem they were dealing with, but which did not proscribe this party.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: You just turn that over to the administrator.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: The complete answer to the bill of attainder argument, I submit, is that anyone can remove himself from the penalties of this statute by simply resigning from the party and although that maybe a difficult choice.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well they said --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It's inconsistent with --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, it does that in England when they proscribed -- had a proscription but no Catholics should come within -- no Catholic priest should come within 10 miles of London, he could have resigned his priesthood and gone to London.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I think that whether that was an attainder or not or whether it was some other kind of regulation, I think it was probably not an attainder.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Mr. Chayes what is the practice of the department so for as the prohibiting passports to mere members of the party.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: We've had no cases before us except these two.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: You mean there is no practice.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: So that there is no practice.</p>
<p>I would point out as Mr. Justice Stewart pointed out that these appellants now say that the statute must be construed to prohibit any member from getting a party -- passport even though his connection -- however tenuous his connection with the party maybe, but they did not raise that issue.</p>
<p>And the usual way to test that kind of an issue is to raise it so that it can be tested on a record.</p>
<p>The department's interpretation of the statute, although it's not one that has been tested in actual adjudication, would be that a member of the party means what this Court has said member means in other cases under this statute.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: What is that?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well it's talked -- it's used a different phraseology in different cases.</p>
<p>It said -- I think the best thing or the best way to describe it is that it's talked about meaningful association, and it means some involvement in the policies and programs.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Anyway it make it an innocent association.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Innocent, passive, nominal; innocent is negated by the statute itself in terms, because it requires knowledge that the organization is required to register.</p>
<p>So you have at least to know you belong this organization.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Even if he is joining the party to get -- to help to get a job or to --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, under constraint or duress, surely.</p>
<p>I think this Court knows the cases Rowoldt, Galvan, the other --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: So that's the kind of meaningful association you are talking about.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I don't see how we content the member means one thing in one section and another thing in another section.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Do you think it embraces the inceptive active membership --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No, I don't think it goes as far as active membership in the Scales case because this is not a criminal case.</p>
<!-- unk--><p><b> Unknown Speaker</b>: What I say, I was looking at page four of your brief.</p>
<p>The hearing officer made a conclusion that Mrs. Flynn was “An active participating and continuous member”, but the board, which affirmed his conclusion, its finding was at all material times Mrs. Flynn was a member of.</p>
<p>Is there any significance in this?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: I don't think there is any significance in the difference in phraseology.</p>
<p>I think when the board and the secretary use the term member in a conclusory finding, they meant member as defined in the statute.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, yes what -- the hearing officer apparently -- well there was some significance in making a finding that she was active, participating and continuing?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, I think that finding stands undisputed even though it wasn't repeated.</p>
<p>I mean the facts show that, the fact show continuing membership since 1937.</p>
<p>They show her in a variety of officer positions in the party, they show a great many activities.</p>
<p>Indeed as Mr. Justice Harlan said at one time conviction.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well how about the other party?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: The other party also longstanding membership in the party, Dr. Aptheker the editor of its theoretical -- of its principle theoretical journal, indeed the record shows travel by Dr. Aptheker to Japan in the past to meet with Japanese party leaders.</p>
<p>So that again there is, as to Dr. Aptheker, a long history of intimate association with the party.</p>
<p>So that --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: When the hearing officer hold as to him, did he hold the same thing --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It says -- I think it said as to both.</p>
<p>No, I am sorry, that's Mrs. Flynn and that's the only one I can -- I'll supply the hearing officer's finding as to Dr. Aptheker.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yeah, well I was just wondering if there was any distinction between the two as found by the hearing officer and that has some bearing perhaps on the effect of the finding of the board itself where they said that we find it to be a member.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: I don't believe Mr. Justice Warren that there is really any basis for distinguishing between these two people.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes I do --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: They are as Mr. Justice Goldberg said, functionaries of the party.</p>
<p>They are intimately connected with its history over a period of 30 years.</p>
<p>If the statue can apply to anybody, it can apply -- it's got to apply to them.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Yes, but I want -- think that it's worth pointing to the Court and it cites these cases, the Rowoldt case, the Gastelum-Quinones case, which we have just been discussing.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Do I understand Mr. Chayes, you are suggesting that if we agree with the government's position, we do it only in the context of proof of meaningful membership and reserve for another day whether mere membership --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No, Mr. Justice Brennan our position --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: You want the (Inaudible)</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No, no our position is that member in this section means what it means in other sections of the same statute, and that therefore “mere membership”, if you by mere membership you mean unwitting membership, coerced membership, nominal membership, passive membership, take the terms that you want, is not precluded by this statute any more than it is in the -- it was in the Rowoldt case.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I'm just wondering, this does mean -- are you suggesting -- I confess I don't quite follow you.</p>
<p>Are you suggesting then that if it's a revocation proceeding which this was or if it's an application proceeding, that there has to be a hearing and if what turns up in the evidence is only nominal mere whatever other -- what basis you want to put on it, that then the passport issue will not be revoked, is that that what you're telling me?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: What I am saying is exactly that Mr. Justice Brennan.</p>
<p>I'm saying that we talk about a standard in language, but as you recognize, the problem is on the case-by-case determination to decide to apply that standard to cases, and it's very hard to talk about what you would need in terms of evidence to get you over the line without having seen the particular case.</p>
<p>But I take it our position is that on the Rowoldt record we could not deny passport, yes.</p>
<p>And I take it first --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Notwithstanding member of the party as to which the Congress is found it's dedicated to subject it with the overthrow and so forth.</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: That's exactly what the Court held in Rowoldt itself.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well we didn't have the Rowoldt, did we, for the benefit of --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Oh yeah, it's the same statute, that's the point, it's just the second title of the same statute.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: With all of these finding and everything?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Yes.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Could you tell me, where whatever -- where in the record any action that the board took?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: I think the board referred to -- here is the Board of Passport Appeals.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Yes, where exactly is that in the record?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: And you can --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Is that just the letters?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It's only referred to in the letters, that is the finding of the Board of Passport Appeals.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And so you'll --</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It is not in the printed record, but it is in the certified record that has been filed with the Court.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Was that an opinion, a set of findings or what?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: It was a set of short memorandum and finding.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Did they purport to adopt the findings or to reject any findings of the hearing officer?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: No, it did not, it accepted the findings below.</p>
<p>The --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, they accepted the findings of the hearing officer?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Well, they did not purport to reject any I think.</p>
<p>What they did was, in effect, it's a very short paper coming substantially to the conclusory finding that is referred to in these records.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Your answer to the Mr. Justice Goldberg prompted me to ask you this question.</p>
<p>He asked you about findings of the reviewing court.</p>
<p>Are you relying on the findings of the board that is supposed to have heard the evidence?</p>
<p>Are you relying on the findings of the court to review that reviewed it?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: We're relying on the finding of the board as sustained substantive by the court upon review and –</p>
<!-- unk--><p><b> Unknown Speaker</b>: What findings of fact are you relying upon?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: On the findings of fact of the board.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Only?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: But the finding of the fact of the board is that these people were members within the meaning of the statue.</p>
<!-- unk--><p><b> Unknown Speaker</b>: That is not that they were meaningful members, is it?</p>
<!-- Abram_Chayes--><p><b>Mr. Abram Chayes</b>: Our argument is that member means what it is mean the statute, in that finding, and therefore -- and if anybody is a member within the meaning of that test as prescribed in this statute, these people are.</p>
<p>Thank you Mr. Chief Justice.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Abt.</p>
<p>Argument of John J. Abt</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: I would first like to point out to the Court the finding of the hearing officer in the case of Dr. Aptheker, which appears as a part of the letter from Mrs. Knight to him at page 13 of the record.</p>
<p>It states the hearing officer concluded that on the basis of the evidence of record, the state department had reason to believe that you were within the purview of Section 6 (a) of the act.</p>
<p>That's the only finding that the hearing officer made in that case.</p>
<p>It didn't even make a finding of membership, only a finding that he had reason to believe that Dr. Aptheker was a member.</p>
<p>Second I would like –</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: What did the board find, did the board --</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well, there was no finding by the board.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: No finding?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No.</p>
<!-- unk--><p><b> Unknown Speaker</b>: What about the hearing officer?</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Well, this was the finding of the hearing officer.</p>
<p>Hearing officer found that he had reason to believe that Dr. Aptheker was a member.</p>
<p>It appears at page 13 of the record.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That is not really an issue in this case.</p>
<p>You told as much earlier in your (Inaudible) Rowoldt and Perfetto case and all of it.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: Of course it's not an issue.</p>
<p>It's not an issue except to the extent that it's been talking about mere membership, whatever mere membership is, and by mere membership I assume we've been talking about non-meaningful membership in the Rowoldt sense, a coerced membership or a casual membership something on this kind, that's not in this case.</p>
<p>But I do want to reply to a question that the Chief Justice asked as to whether the state department has applied passport provision to rank and file members.</p>
<p>Let's used at term instead of mere member of the organization.</p>
<p>And the answer to that Mr. Chief Justice is that the statute makes it difficult but not impossible for a rank and file member to apply for a passport, because by the very act of applying, he's subjecting himself to a possible five-year prison sentence, and this no academic business.</p>
<p>The Department of Justice last Fall indicted a women, I don't know whether she is a mere member or rank and file member, or what kind of member she is, but indicted her out of down in San Francisco charged with just doing one thing for having applied for a passport while being a member of the Communist Party.</p>
<p>And that I should think would be sufficient to discourage rank and file members from testing out the application of the act to themselves.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible) that the application then disclosed her membership.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No, no, no, the Section 6 makes it a crime for a member of the party to apply.</p>
<p>She applied, and the government alleges that she is a member.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: That's one of the sections as I recall that the Court found it unnecessary to pass.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: That's quite right, because Mr. Justice Frankfurter we may not be, may never be confronted with that problem because Communist may never want a trial.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: They might never want to take this risk, why.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: That's right, that's correct.</p>
<p>And I think Mr. Justice Douglas who said that that's a unique kind of situation which requires a citizen to subject himself to a possible five-year penalty in order to find out whether a statute is constitutional or not.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible)</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: It says what Mr. Justice Harlan.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: The questionability of the application of the statute to applying for a passport.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No that's not -- that's not directly before the Court.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: That's not involved here.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: No and I raised, I made the remark I did and reply to a question that the Chief Justice asked to Mr. Chayes.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, that's the same meaning.</p>
<p>You've got this here (Inaudible) through the revocation proceeding.</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: There happen, there happened to be a revocation proceeding otherwise we would have to try out in the criminal case.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible) doesn't want to go to a (Inaudible).</p>
<!-- John_J_Abt--><p><b>Mr. John J. Abt</b>: The State department did us a favor I would say, or did the organization a favor in permitting this case to brought in a civil from rather than requiring a criminal prosecution to try it out.</p>
<p>Now, as I understand Mr. Chayes, what he, in bottom, is saying is that it's necessary to deny passports to all members of the Communist Party as a class indiscriminately, because we have to forestall the possibility of their doing something illegal if they went abroad.</p>
<p>Now, and it's too risky to wait until they do something illegal and then prosecute them.</p>
<p>I'd like to say only that all democracy I think Mr. Justice Holmes who made the point long ago I can't remember the exact phrase, but all democracy is a risk.</p>
<p>The presumption of innocence is very risky business.</p>
<p>And the rule against the prior restraints on First Amendment -- on the exercise of First Amendment rights is a very risky business.</p>
<p>You got to wait until something bad is done under our constitution before you can prosecute a man or punishing or deny -- or deprive him of his liberty.</p>
<p>Now -- but even if we put that one aside, put aside the argument I made earlier on the question of preventive detention, which I think is very much in the foreground of this case, and talk only about the form of this statute.</p>
<p>Mr. Chayes is a legal advisor for the state department but I must say that he talks, when he argues to this Court, as a typical prosecutor.</p>
<p>The typical prosecutor says, if we have to prove that this man from the beginning of ab initio, this man committed a crime, will never get a conviction, and therefore we need a presumption that was Tot case that Mr. Justice Black -- in which Mr. Justice Black wrote the opinion and that's been the cry the of prosecutor since the beginning of time, we need the help of a presumption.</p>
<p>Now, I don't think that the national security is so endangered that we've got to throw away the presumption of innocence and rely on these kind of presumptions that every person who joined the Communist Party, merely because of his membership, is a potential spy, saboteur, or whatnot in order to protect the national security of this country.</p>
<p>Indeed I think in terms of the real source and base of our national security, it lies not in shortcut procedures of this kind but the real base of our national security that lies in the perseverance of our constitution and the democratic processors that have been traditional with us and I that I hope that we'll continue to observe.</p>
<p>Thank you.</p>
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Wed, 16 Jan 2013 22:48:42 +000086198 at http://www.oyez.orgRabinowitz v. Kennedy - Oral Argumenthttp://www.oyez.org/cases/1960-1969/1963/1963_287/argument
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<a href="/cases/1960-1969/1963/1963_287">Rabinowitz v. Kennedy</a> </div>
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<p>Argument of David Rein</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Number 287, Victor Rabinowitz et al., Petitioners, versus Robert F. Kennedy, Attorney General of the United States.</p>
<p>Mr. Rein, you may proceed.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Mr. Chief Justice and may it please the Court.</p>
<p>Petitioners here are members of the bar of the State of New York, engaged in the general practice of law under the firm name of Rabinowitz and Boudin.</p>
<p>Since this case is here, on a motion for judgment of the pleadings, the facts are -- is set forth on the complaint, and I will just briefly state what the complaint said with regard to the matter in controversy.</p>
<p>According to the allegations of the compliant, petitioners were retained on or about September 10th of 1960, by the Republic of Cuba to represent that Government in purely mercantile and financial matters.</p>
<p>The retainer does not cover advice and representation involving public relations, propaganda, lobbying, or political or any other non-legal matters.</p>
<p>And the petitioners have not in fact represented the Republic of Cuba in any respect other than in mercantile and financial matters.</p>
<p>In August of 1961, of the respondent, the Attorney General here demanded that petitioners register with him in accordance with the provisions of the Foreign Agents Registration Act of 1938.</p>
<p>Petitioners came down to Washington and discussed the matter with the representatives and subordinates of the Attorney General and they maintained that their representation of the Republic of Cuba did not fall within the purview of the Act.</p>
<p>And that as a matter of fact; they were expressly exempted from the Act by the provisions of simply Section 3 (d) which exempt individuals who engage in purely mercantile and financial matters.</p>
<p>The respondent nevertheless insisted and proudly continues to insist the petitioners register.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Is there any dispute if it returned to the retainer or registry?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: There is no dispute at all on this compliant and this set of facts.</p>
<p>Let me say, the Government in their answer said as follows with regard to the nature of the retainer.</p>
<p>They admitted the allegations of the compliant and then they went on to say, "They did not have any sufficient information and belief to determine whether there was anything more."</p>
<p>But they have never alleged that there was anything more.</p>
<p>They simply say that, "Maybe there is, we don't know."</p>
<p>But in the discussions that we had with the Attorney General, he did not say that they had to register because they represented the Republic of Cuba or in any way other than as alleged in the complaint.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: But the purposes of this case were to take it if it's just a straightforward (Inaudible)?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: That's right.</p>
<p>There is no --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: There is no other issue raised here by the pleadings and as I understand it, there is no issue raised by the Attorney General even outside the pleadings except apparently to say that he doesn't know anything more, though he has full knowledge really of the -- I can state, he obviously does have full knowledge of the appearances which the petitioners have made upon by -- for the other Republic of Cuba.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well Mr. -- Mr. Rein, is this -- when -- when you say retainer, is this an on-going arrangement involving periodic payments or is it solely a piece work undertaking?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: I understand it's a continuing arrangement.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: So that -- so that periodically, there would be some retainer paid somewhat related to the work done I suppose, but --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: The pleadings don't state the nature of the financial payments.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well I don't --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Not (Voice Overlap) --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I'm really not interested in that.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: It is a general --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I mean --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: It is a general --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Yes.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: It's a general retainer for -- for the -- the legal matters.</p>
<p>In other words --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: It's not just that if -- if your clients' client has a -- had the case here or some -- some legal matters that it brings out to your client from to time to time as they come up but it's just -- but it's -- it's really an honest -- an honest on-going retainer.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, let's put it this way.</p>
<p>I think they would bring all legal matters to the client as they come up, but the nature of the retainer and the nature of the relationship has been that there are continuous matters and they have been continually engaged in litigation on behalf of their clients.</p>
<p>Now, I don't -- was that answers the question?</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: (Inaudible) as we think of that.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Yes, it is.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: But your -- your exemption runs only to -- I'm reading at the bottom of page 57, subsection (d).</p>
<p>To those in private and non-political financial or mercantile activity, that isn't so like a lawyer.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, they represent the Republic of Cuba as their lawyer in matters involving money.</p>
<p>I -- I think it's what it comes down to and that's -- that's how they have represented.</p>
<p>I think the character of the representation is best illustrated --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Yes, the --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: -- by the case in which they appeared.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Or filing.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Or filing?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Many who aren't filing?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Filings?</p>
<p>I'm sorry I don't get --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, like in this case.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, I represent --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: This case involved money.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, I don't -- I represent Rabinowitz and Boudin here and they're not here as -- hearing on behalf of the Republic of Cuba.</p>
<p>I'd also consider the Republic of Cuba is a party to this case.</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: (Inaudible) 56 includes, expressly includes attorney for a foreign principal.</p>
<p>That's the thing that --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Yes.</p>
<p>Let me say this, so I'm giving the facts, I think both sides agree here that the issue was to whether or not the petitioners here do have to register under the Foreign Agents Registration Act.</p>
<p>It's really not before the Court at this time and I'm just stating on the pleadings.</p>
<p>And so I don't think it would help for the purposes of this case to go on to it any further than we have, if I may say so.</p>
<p>But just --</p>
<!-- William_O_Douglas--><p><b>Justice William O. Douglas</b>: (Inaudible) whatever they be, the merits.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: That's -- that's the question.</p>
<p>I just want to add one point on that.</p>
<p>The character of their relationship I think is best exemplified by their appearance here for the Republic of Cuba or in a case, which was argued before this Court this term.</p>
<p>I think that's about typical of the kind of representation they have given in matters of that nature.</p>
<p>And it's a case which was argued here and is pending.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Yes, the Sabbatino case.</p>
<p>And that I say demonstrates the nature of the type of representation.</p>
<p>At -- the petitioners, after their discussion with the Attorney General, in which they came to an impasse, filed a suit in the District Court, asking for declaratory relief, declaring that their activities are -- do not subject them to the requirements of registration.</p>
<p>They attach to the complaint and I think it's important to consider here the nature of the interest.</p>
<p>As exhibits, the registration forms which had been adopted by the Attorney General and which petitioners would be required to complete if they were required to register under the Act.</p>
<p>And this form would require petitioners to disclose all of their businesses, occupations and public activities without regard to any relationship of these activities to their representation of the Republic of Cuba.</p>
<p>They would be required to list all of their other law clients or any other outside activities which they may have outside their law business, and all talks, pictures, radio broadcasts which they may have made or articles or books which they may have written.</p>
<p>The form would also require them to list all of their stockholdings on any pecuniary interest they may have in any other corporations or any other business enterprise.</p>
<p>Again, without regard to any relationship, these other business enterprises might have with their representation of their foreign principal, the Republic of Cuba.</p>
<p>In addition, the complaint alleges that because of the nature of their retainer, our counsel find it necessary to bring litigation in courts throughout the country and that in this connection, they find it necessary to retain associate counsel.</p>
<p>And attached to the complaint is another form of the Attorney General which the Attorney General would require all associate counsel to complete, and this form would require anybody who is associated even in a individual case for the petitioners.</p>
<p>They would have to disclose all visits to or residences in foreign countries within the past five years or club, societies, committees or other non-business organizations of the United States or elsewhere, of which they had been members, directors or -- and so forth.</p>
<p>Then also all books, magazines, articles, pictures which the associate counsel may have made.</p>
<p>And the complaint alleges, and I think it's clear that this burden put upon associate counsel would make it extremely difficult for petitioners here to retain associate counsel in many cases.</p>
<p>Associate counsel maybe willing to commit to a case but not at the price of such a disclosure, an invasion to their privacy, and they alleged that -- I'm sorry.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: As requiring?</p>
<p>I will get to that later.</p>
<p>I would like to argue that it's unconstitutional at a certain respect, in respect to vagueness.</p>
<p>I do not argue that if Congress had required lawyers engaged in the financial and mercantile matters to register for foreign principals, that Congress does not have their power.</p>
<p>I do not maintain that.</p>
<p>I would say a question would be raised, which I think isn't raised here, as to whether if Congress had required people in the position of the petitioners here to register whether the Attorney General could ask him the cause of that registration, the kind of questions and information that he does ask which seemingly are all slanted toward what the statute does really require that is people who engaged in propaganda activities --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: -- and that --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: As one of the question beyond that, no.</p>
<p>I haven't presented that at all in the brief, as to whether the questions go beyond a reasonable regulation.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Inaudible) that the Attorney General has gone beyond the provisions of the Act --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: That's correct.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- in requiring this questionnaire.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, he's gone beyond the provisions of the Act in asking these petitioners to register?</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes, but (Voice Overlap) --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: They are expressly exempt.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- in asking anyone -- anyone these questions.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: No, no.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: It's only -- only because of what you claim your particular employment is that he has no right to ask you all these questions.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, I think, when we go beyond that.</p>
<p>We say he has no right to require them to register at all.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Register at all, I see.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: And we point this out as showing the injury, if I may say so, to the petitioners to be required to register when there is no requirement at all to say that the registration would be a gross invasion of their privacy --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: No.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: -- because of what is asked to them.</p>
<p>And we do point out arguing and it would come to the question of the application of the Act, that the kind of things that the Attorney General ask people to answer do make sense when applied to foreign propaganda agents which is what the Act was intended to cover.</p>
<p>They make absolutely no sense when applied to petitioners but we say --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I -- I don't follow this Mr. Rein.</p>
<p>If you're not covered by the Act, why isn't all the rest of it wholly irrelevant?</p>
<p>As I understand you, all this business of what they've had to answer if they were required to answer --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: We say it is --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: -- doesn't bear on whether they're required to register, does it?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: We say it's wholly irrelevant except in connection with showing why we have a right to bring declaratory judgment action and why we're entitled to declaratory relief.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Will you have to prove injury before you may do that?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, apparently we have to show that registering would injure us in some way.</p>
<p>We have a legal interest to protect, yes.</p>
<p>I think we do and that's the substance of it.</p>
<p>Now, if the Court says we can bring an action for declaratory judgment relief without showing that there's a gross invasion of our privacy, I'm certainly willing to go along with that.</p>
<p>I think if I -- I put this in to show the burden that we do have to make, that we do have a legal interest to protect here and that is the legal interest of the right of privacy.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: (Voice Overlap) -- what case in this Court led you to think you might have to prove injury before you could maintain an action for declaratory judgment?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Oh, I would say that's just on general -- general equitable principles that in order to come in and ask the Court for relief, you have to show that you've been injured in some way.</p>
<p>I -- I don't know that I'd go beyond that.</p>
<p>But I think we've met it so I don't think that's the problem and that's the only reason why I was going into these matters.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Yes.</p>
<p>And we have to show that there is an interest to be protected and that I say is our interest.</p>
<p>After the filing of the complaint, the Government filed an answer in which as I've indicated, they substantially admitted all of the allegations in the pleadings.</p>
<p>They wanted two aspects in which they commented.</p>
<p>They did not have sufficient information or belief to state an answer.</p>
<p>But the case came before the District Court on the basis really of the allegations and the compliant.</p>
<p>The Government -- Government moved there for a judgment on the pleadings and the District Court denied it.</p>
<p>The Government then applied to the District Court's belief to bring an interlocutory appeal stating and asking the Court to certify that there was a controlling issue in this case, namely, whether or not the petitioners could bring an action for a declaratory judgment.</p>
<p>And under a new statute 1292 (b), the District Court certified that an interlocutory appeal could be taken on that question alone.</p>
<p>That question was a -- here was accepted by the Court of Appeals and the Court of Appeals heard it on that question and reversed the District Court holding that the action could not be brought in a divided opinion with the dissent by Judge Fahy.</p>
<p>We say therefore, the case is before the Court in the present posture.</p>
<p>The trial court held that on the facts, and I think we must assume that on the facts set forth in the complaint, petitioners are exempt from the requirement of registration under the Act and they're not required to register.</p>
<p>And the Government appealed on the ground and this is the only issue before the Court, that assuming that they are exempt and are not required to register, are they entitled to have a court declare that in this declaratory judgment proceeding?</p>
<p>And they raised two questions, and there are two question related with respect to that single basic issue.</p>
<p>One, is this an appropriate case for declaratory judgment relief and two, whether the action is an unconsented suit against the United States.</p>
<p>We submit that the same considerations really should determine the answer to both questions but I think for the purpose of orderly presentation, I wish to discuss first the question of whether this is an appropriate case for declaratory judgment relief.</p>
<p>We have set out at page 24 of our main brief, the leading case in this Court on declaratory judgment relief, setting out the factors that must be satisfied before a case was appropriate for declaratory judgment.</p>
<p>And we say and I think I want to discuss it only briefly because I don't know if the Government disputes it seriously, that we made all of those requisites.</p>
<p>One, the controversy here is definite and concrete.</p>
<p>It is not hypothetical and abstract.</p>
<p>We contend that under the statute, the legal representation of a foreign government in purely financial, mercantile matters is exempt.</p>
<p>The Government contends on the contrary that the statutory exemption does not apply, as I understand their argument, where the foreign principal is a foreign government or at least as it seems to have modified its position in its brief here, at least where that foreign government controls the means of production in commerce within its borders.</p>
<p>That is the concrete legal issue posed by the pleadings and by the controversy.</p>
<p>The controversy again, dealing with the language of the Acme case, it touches the legal relations of parties having adverse and legal interests.</p>
<p>The petitioners here have a legal right not to make disclosures of their private affairs in the absence of a lawful governmental requirement that they do so.</p>
<p>In addition, as we have shown, the requirement of registration will interfere with their ability to -- to practice law.</p>
<p>On the other side, if petitioners are required to register, the Attorney General, as the government official charged with the administration of the Act, he has a legal interest and a legal duty to require their registration.</p>
<p>The controversy is real and substantial.</p>
<p>The respondent here, the Attorney General has formally demanded that petitioners register.</p>
<p>The petitioners of -- replied that they are not covered by the Act.</p>
<p>They have discussed the matter with them.</p>
<p>The matter has reached an impasse.</p>
<p>We have a real and actual dispute and the opposing legal views of the parties would be presented in this litigation as clearly and as sharply as they would be in any other litigation and any other forum.</p>
<p>In addition, the cases present no problem as it's sometimes presented in declaratory judgment actions of -- arising from a conflict between federal state relations.</p>
<p>This is entirely a federal matter and as a matter of fact, the same identical court would pass on this legal issue in this proceeding as it would pass upon it if it were brought up in a criminal proceeding.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: How many issue --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Inaudible) instead of -- of warning the petitioner that he intended to -- to prosecute him, he -- he actually did prosecute him.</p>
<p>Would there be any relief from that sort of declaratory judgment or -- or in any other manner?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Fortunately, we have not been faced with that problem.</p>
<p>We were able to come in to Court and ask that the declaratory judgment action be declared, that our rights be declared prior to the instituting of any such action.</p>
<p>And I believe that -- I would stretch it out here, I think we would have had a right to injunctive relief on the basis of the way the posture of the case lies.</p>
<p>But we don't need to come to that.</p>
<p>The Attorney General, whatever reason he has, has not brought a prosecution here and our declaratory judgment action was brought first.</p>
<p>And I think that since we have the right to relief in the declaratory judgment action, it's unnecessary to decide what the situation would be if he had moved first since he --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well I -- I thought you said that your -- your action was premised on the fact that he -- he threatened to bring the action against you.</p>
<p>Suppose he had not threatened, would you still be here?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, I think we have enough of a threat, let's say without a formal saying, I will prosecute you if you don't register.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: The Act itself is enough threat?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: No, no.</p>
<p>Not the Act itself.</p>
<p>The Act itself is not enough because under the Act, the Act has no threat at all because the Act were examined, if we read the Act.</p>
<p>We don't think the Act is a threat, but we think its formal demand that we register, writing a letter and saying, "You are under the Act and you should register."</p>
<p>The fact that we had a conference with him and we said, "We are not under the Act, we do not have to register."</p>
<p>And he said, "I remain unconvinced by your arguments.</p>
<p>I say you do have to register.</p>
<p>That is my interpretation of the law."</p>
<p>I say, beyond that, I think that's sufficient to make the -- make the controversy sharp and clear.</p>
<p>If then, the only step remaining was for him to bring a prosecution.</p>
<p>I think it was fair for the petitioners to assume that if the Attorney General believed that they were under the Act and that they didn't register that he would prosecute because there's no purpose in his formal demand other than that.</p>
<p>Now, we can't say that he was conceivable that he might have changed his mind or he might have been bluffing, I don't know.</p>
<p>But I think the issue has been sharply enough proposed to this point to permit a declaratory judgment relief.</p>
<p>Finally, we say, the controversy admits a specific relief through a decree of a conclusive character.</p>
<p>In other words, the judgment of this Court saying that the petitioners on the basis of their conceded activities either were or were not under the coverage of the Act would end this dispute in a final manner.</p>
<p>The Government argues nonetheless that the Court should not entertain this action and it has really two basic positions.</p>
<p>I think first -- well, let's say there are three grounds in which it advances.</p>
<p>First, it says that the scheme of the Act is such that Congress intended to make a criminal prosecution the exclusive means of testing the applicability and the coverage of the Act.</p>
<p>Now, the Government points to no statutory language to that effect.</p>
<p>The statute doesn't say -- the statute simply provides that on a failure to register, it's a crime and the Attorney General may prosecute.</p>
<p>It doesn't say that this is the sole and exclusive way in which the validity of the Act can be tested.</p>
<p>It doesn't say you can't bring a declaratory judgment action.</p>
<p>But the Government argues that Congress had that purpose and it argues it from the general congressional purpose underlying the statute.</p>
<p>And it sets out at considerable length in its brief, pages 15 to 24.</p>
<p>The general purpose of this Foreign Agents Registration Act and they point out quite correctly and we -- we agree with them that Congress passed this Act because they wished to force those engaged in the dissemination of propaganda on behalf of the foreign principal to register so that people who read this foreign propaganda and read this propaganda would know the source.</p>
<p>And that these individuals would not be able to operate in secrecy.</p>
<p>That is to put out foreign propaganda without disclosing that you're a -- in fact, a foreign agent.</p>
<p>What is applied to this case, this argument about a denial of declaratory judgment relief because of that general theory and philosophy underlying the Act is just plain nonsense.</p>
<p>In the first place, petitioners here are not engaged in any propaganda or any public relations or lobbying activities.</p>
<p>In the second place, there's nothing about their representation to their foreign principal which is secret.</p>
<p>On the contrary, they have stated not only by bringing this action but they have appeared in Court in numerous occasions as they have appeared in this Court and have stated that they represent the Republic of Cuba.</p>
<p>So, there's no question here about somebody seeing propaganda or issue by the petitioners, which they don't issue and not knowing that they -- comes from them when they have not -- there are no secrets about their representation of the Republic of Cuba.</p>
<p>We say it demonstrates quite clearly and it's a -- so the demonstration that has come out even sharp -- more sharply in a recent hearings before the Senate Foreign Relations Committee which I will come to later, about considering amendments to the Act.</p>
<p>That the problem which gives rise to this present case and which has created the problem is the effort of the Department of Justice to apply the Act which was designed as you read the legislative history, the quotations and everything that the Government sets fort in its brief, it was of design to cover foreign propaganda agents who were secret about their connection with their foreign principal.</p>
<p>And the Government has now taken this statute and tried to apply it in a completely different situation, has tried to apply it to lawyers who were not engaged in propaganda and who do not conceal their activities.</p>
<p>And we also show that, if anything their legislative history would prove, is that the Act does not apply to the petitioners at all.</p>
<p>Secondly, is their second basic position, the Government argues that the complaint fails to state an equitable cause of action.</p>
<p>And they say that in essence, although we started a declaratory judgment action, the action would in effect, if the Court considers it, amount to a restraint on a criminal prosecution, and that equity will not ordinarily enjoin a criminal prosecution.</p>
<p>And again, it argues at great length matters which we do not dispute.</p>
<p>That is that a declaratory judgment action has to be tested by ordinary equitable principals.</p>
<p>We concede that, and I think the Government believe as the obvious by making such a point to that in its brief.</p>
<p>But we say that this case meets the ordinary equitable principles.</p>
<p>In the first place, to meet ordinary equitable principals, you have to show that the prosecution itself will present an irreparable injury far beyond that which is normally attached to a criminal prosecution.</p>
<p>Now, what are the penalties imposed here upon the petitioners if they do not register?</p>
<p>They're criminally prosecuted and if they are possibly successfully convicted.</p>
<p>The penalties imposed by the statute are severe we point out in our brief as many of the cases in which this Court has entertained declaratory judgment actions or given injunctive relief.</p>
<p>Briefly, the petitioners would be punishable by a five-year prison sentence and a $10,000 fine.</p>
<p>And even more than that, since they are members of the bar, being convicted of a felony would be -- bring about considerable damage to their reputation and quite likely disciplinary proceedings before their bar association.</p>
<p>Now, the Government is very sanguine about that matter.</p>
<p>There we fraught to the present case, this curious they say that there's really nothing for petitioners here to worry about because this is really a test case.</p>
<p>They say an indictment and prosecution would not reflect on and I'm quoting now on petitioner's honesty and integrity, "Since it would involve only the legal question whether their conceded activities as counsel for a foreign government bring them within the Act's registration requirements."</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Is that -- is that in their brief? You're quoting from the brief?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Yes, I'm quoting from their brief.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Do you -- you know, counting of the page?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Of their brief?</p>
<p>Yes, I think so.</p>
<p>I'll find it a little later.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Alright.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: It's in my mind, but it is -- at what?</p>
<p>32.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Thank you.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: At page 32, yes.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I see, thank you.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: They say it's a test statute and would not -- a test case would not have any reflection on petitioner's honesty or integrity.</p>
<p>Now, we submit that petitioners here cannot really feel so comfortable about the matter.</p>
<p>A criminal prosecution really is not the proper forum for a test case.</p>
<p>And a successful prosecution here will not culminate in the mere order to register.</p>
<p>It will amount to a conviction of a felony.</p>
<p>And quite interestingly enough, appearing in a different context and that is testifying before the Senate Foreign Relations Committee on the hearings on S. 2136 on amendments to the Foreign Agents Registration Act.</p>
<p>Deputy Attorney General Katzenbach took quite a different view of the serious nature of a prosecution under this Act particularly with respect to its application to attorneys.</p>
<p>And he told the Congress there that -- and I'm reading now from page 3 of my reply brief according to Mr. Katzenbach as he testified before the committee.</p>
<p>He said, "Of course Senator, the penalty of being convicted of a felony even if the fine was small or if no jail sentence was imposed, can in many instances be a very heavy penalty indeed just simply to have a conviction."</p>
<p>This is not true in the corporate situation but in the individual situation, there had been convicted of a felony for example in the case of a lawyer amounts to automatic disbarment in most instances.</p>
<p>I do not know whether a year in jail added to that has very much when he has that kind of a penalty.</p>
<p>And perhaps Attorney General Katzenbach overstated the point but I wish to indicate that when petitioners here had apprehensions and sought this declaratory judgment relief, they did have a very serious problem.</p>
<p>They cannot simply sit by and say that it was simply a test case.</p>
<p>As a matter of fact, I would submit that the penalty here is as great and as much an in terrorem nature as in the classic case of Ex parte Young.</p>
<p>Quite frankly, although as much as petitioners prize their right of privacy here that absent -- this avenue of judicial relief, I think the petitioners would hesitate very much to test their legal rights in any criminal prosecution.</p>
<p>And in all likelihood, rather than risk the hazards of a criminal prosecution, and despite the affirmed conviction authority to exempt and not required to register, they probably would register rather than face their problem.</p>
<p>As a matter of fact, the respondent boasts to some extent that 94 of the law firms and individuals have registered under this Act without raising a peep.</p>
<p>Now, I submit they were face with that same kind of problem.</p>
<p>We assume here that they were under the Act in which there was no question or they thought they were exempt too but they decided that, "Well, these are valuable rights of privacy, but we're not going to take a chance."</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, let me say that.</p>
<p>We alleged in our complaint that there was no administrative remedy.</p>
<p>The Attorney General said in his answer that there was no administrative remedy.</p>
<p>He says in his brief here and apparently in recognition that there is a real problem here.</p>
<p>He says there is no real -- I think at one point this brief said, it would be a great injustice if this Court dismissed the suit because you could always come in and discuss the matter with the Attorney General.</p>
<p>And he has discussed it with people and advised them whether or not they would register.</p>
<p>Now, I don't think he suggest that that's an administrative remedy because that seems to me to be ineffective administrative remedy, we would have to have some kind of a formal proceeding subject to judicial review.</p>
<p>Now, if there was that judicial remedy, I think we have exhausted it to the extent we'd have that dis -- discussion with the Attorney General.</p>
<p>He has given us his view and we still disagree with him and I know of no other way.</p>
<p>I would like to point out however and this is a matter that came to our attention after we wrote the brief and which is quite significant however that it appears in the hearings before the Senate Foreign Relations Committee, particularly in the testimony of Mr. Arthur Dean, that the Attorney General has told some lawyers in law firms that they don't have to register if they merely give legal representation and not trying to lobby or promote anything.</p>
<p>So, he has given relief to some but not to us.</p>
<!-- Arthur_J_Goldberg--><p><b>Justice Arthur J. Goldberg</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: No.</p>
<p>These seem to be conversations.</p>
<p>And they point out as a matter of fact, which gets to the point about the constitutionality of the statute which weren't going to raise that Mr. Dean also testified that in his conversations with the Attorney General or his representatives, the Attorney General's representative said, "Frankly, we don't understand the Act.</p>
<p>We don't know what it means anyway and we just give people guesses."</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: He was testifying before the Senate Foreign Relations Committee and appearing on behalf of himself as someone interested in the Foreign Agents Registration Act.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Where does that appear?</p>
<p>Its hearings on the -- before the Committee on Foreign Relations of the United States Senate, 88th Congress, first session on S.2136 to amend the Foreign Agents Registration Act of 1938 as amended, Mr. Dean's testimony specifically appears at --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Is it quoted?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: It's quoted in the brief and we cite it in our reply brief, Your Honor, we cite in our reply brief.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Is -- in our reply brief at page 12, quoting from page 52 of the hearings, Mr. Dean testified as follows, "In a number of my talks that I have had with the Department of Justice over the years, the thing they have always been concerned about in the previous law was it was so broad and so vague that they did not know how to interpret it."</p>
<p>And Chairman Fulbright commented on the same point."</p>
<p>I think you have raised a very difficult problem, and one of the problems of enforcement in the existing law has been the difficulty of interpreting some of these provisions."</p>
<p>Now, significantly --</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: What?</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: He meant the law hasn't existed in the present law before the Court today.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: That was the previous.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: He was contrasting previous law or I think, in contrast to the proposed bill which the Senate was then considering which is S. 2136 which has not yet been enacted.</p>
<p>He meant the law as it stands -- what?</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: Existing law, he thinks -- he meant?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Yes, he meant existing law.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: The Attorney General says 94 law firms have registers.</p>
<p>Well, he -- he says 94 law firms and individuals.</p>
<p>I don't know how they break up.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Lawyers, yes.</p>
<p>94 is his -- is his figures and I don't know the basis on which they have registered or what the nature of their representation is.</p>
<p>That's all I know in the statistics he gave in that respect.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Inaudible) as available to the public, are they public documents (Voice Overlap)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Oh, the forms?</p>
<p>Yes.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: The forms are.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Yes.</p>
<p>These are standard forms in which we attached to our complaint.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: They're available with the Attorney General.</p>
<p>You ask him what forms we have to fill out.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes, but they're not filed on a confidential statement.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Oh, when they're filed?</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Voice Overlap)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: When they're filed and filled out, they're open to the public, yes.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Open to the public.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: The Act requires that the information be on file with the Attorney General and open to public inspection.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: -- if the -- the Attorney General (Inaudible) --</p>
<!-- unk--><p><b> Unknown Speaker</b>: I think that's --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: -- does not furnish him.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: We haven't furnished any information.</p>
<p>We haven't registered at all.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I mean, would you have to do it all?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: If we were asked to register, yes.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I know, but were you asked to furnish any in -- in terms of making up -- in terms of trying to determine whether you were -- whether you were required to register.</p>
<p>Did they ask you --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: (Inaudible)</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: -- for any information at all that --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: No, no.</p>
<p>In order to determine --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Yes.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: In order for him to make as a judgment?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Yes.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: No.</p>
<p>He never said --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: So any information he wanted -- any in -- there has never come a point where he asked for something you didn't give him.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: That's correct.</p>
<p>I mean, we didn't give him the registration that --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: No, no.</p>
<p>I understand.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: But in the course of our discussions, he didn't say, "Tell me something in order to determine what the nature of your representation was."</p>
<p>Now, he takes the position as I understand it that if you represent a foreign government, you must register.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Yes, in any as a lawyer.</p>
<p>And then he has modified it, and perhaps I'm doing eminent justice that maybe it isn't every foreign government, maybe it's just some foreign governments and he would put Cuba in that category.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Because its --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: And -- and efforts were made to test the statute by a declaratory judgment?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: To my knowledge, yes.</p>
<p>The Government says that there was another effort brought in the District Court in which it was dismissed by the District Court and that no appeal was taken.</p>
<p>Other than that, I know of no other case other than this case.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: (Inaudible) wouldn't most of your arguments still follow if, for example, he asked you to register and you've -- and you've said to him -- well I just -- "I don't think I'll register", and he indicted you and then you filed a separate action claiming that you were entitled to a civil determination of willfulness -- of willfulness, the element of willfulness.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: But we're not asking a civil determination of that.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, I know but wouldn't your arguments apply to that?</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: No, I don't think so.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Why not?</p>
<p>I mean the same --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Because --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: It would be the same threat to you.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: No, because I think Declaratory Judgment Act is designed so that you can cover and have courts determine purely legal questions.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But won't this one get down --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: A coverage of the Act -- what?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Won't this one get down to whether it's sort of a half -- legal half --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: No, I think --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: -- sort of determination about whether being a lawyer is being mercantile or --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, I -- I think, it's not a question of willfulness.</p>
<p>I think, the only question before the Court on this grazes whether or not we're exempt.</p>
<p>Now, I gather the Attorney General says the position and we're willing to take it if we have to.</p>
<p>And I don't know whether we would stick to it in the criminal prosecutions.</p>
<p>He seems to say that because we have an honest belief that we're exempt, that he couldn't convict us criminally.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: So what is it -- are you suggesting that --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: I don't know what Mr. Justice --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: -- you -- you never could've willfully violated this Act anyway.</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: Well, that seems to be a suggestion.</p>
<p>We -- I say, it's not complete assurance to us because we've had experience with the Attorney General may in a criminal proceeding, take a different position.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well, let me --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: We may therefore say, willful means something else than he says it means here.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well, do I understand Mr. Rein, if you prevail that the action lies, there still has to be a hearing, I gather at which --</p>
<!-- David_Rein--><p><b>Mr. David Rein</b>: I'm sorry?</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: If you prevai